Whether failure to mention that no credit of additional duty is available result in rejection of SAD refund ?

PJ/CASE LAW/2015-16/2775

Case:- CHOWGULE & COMPANY P. LTD. VS COMMISSIONER OF CENTRAL EXCISE, GOA

Citation:-2015 (315) E.L.T. 417 (Tri. –Mumbai)

Brief Facts:-The appellants are in appeals against the impugned order wherein the refund claim of SAD filed under Notification No. 102/2007, dated 14-9-2007 have been rejected on the ground that as per the provisions of condition 2(b) of the said Notification, there should be an endorsement to the effect that no credit of additional duty was taken and benefit of SAD has not been passed on to the buyer.

Appellant contentions:-It is the contention of the appellant that the appellant being a trader have cleared the imported goods on payment of CST/VAT and no duty element has been shown in the invoice. In fact, goods have been cleared under commercial invoice. Therefore, the condition 2(d) of the Notification 102/2007 is complied with indirectly. In these circumstances, it is prayed that the refund claim be allowed. The matter was referred to the Larger Bench of the Tribunal raising the following issue:
"Whether to avail the benefit of Notification No. 102/2007, the condition 2(b) of the Notification is mandatory for compliance being a trader who cleared the goods on the strength of commercial invoices."
The decision given by the larger bench is in favour of the assessee.

Respondent contentions:-The respondent reiterated the findings of the lower adjudicating authority.

Reasoning of Judgment:-The Tribunal observed that the reference on this issue was made to the larger bench and the said reference has been answered by the Tribunal [2014 (306) E.L.T. 326 (Tri.-LB)] wherein it was held that "A trader-importer, who paid SAD on the imported goods and who discharged VAT/CST liability on subsequent sale and who issued commercial invoices without indicating any details of the duty paid would be entitled to the benefit of Notification No. 102 /2007-Cus.", although they have not made an endorsement on the invoice that credit of duty is not admissible. Therefore, following the decision of the Larger Bench of the Tribunal, it was held that as the appellants have cleared the imported goods on payment of CST/VAT being a trader under the cover of commercial invoice, therefore they are entitled for refund claim as they have satisfied the condition of Notification No. 102/2007 dated, 14-9-2007.
In view of the above findings, the appeal filed by the appellant was allowed.

Decision:-Appeal allowed.

Comment:-The substance of the case is that appellant are eligible for refund of SAD as far as they have cleared the imported goods on payment of CST/VAT being a trader under the cover of commercial invoice. Merely because they have not made an endorsement on the invoice that the credit of duty is not admissible, the benefit of refund claim cannot be denied to them.

Prepared By:- Anash Kachaliya

Comments

PJ/CASE LAW/2015-16/2775

Post a Comment

Query