Whether no declaration of the requirement of para 2(b) of Notification No. 102/2007-Cus., dated 14-9-2007 in the invoices disentitles the appellant-trader to the refund of additional customs duty paid?

PJ/Case Law/2013-14/1981

Case:- ASTRA ZENECA PHARMA INDIA LTD. Vs COMMR. OF CUS., NEW DELHI

Citation:- 2013 (294) E.L.T. 574 (Tri. - Del.)

Brief facts:- Relevant para of the notification reads as under :-
“(b) the importer, while issuing the invoice for sale of the said goods, shall specifically indicate in the invoice that in respect of the goods covered therein, no credit of the additional duty of customs levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible.
While 9 appeals were disposed by ld. Appellate Authority by common Order-in-Appeal No. CCA/I & G/102-110/2010, dated 26-7-2010 the other appeal was disposed by different order dated 24-3-2011. However all the appeals before ld. Commissioner (Appeals) resulted with dismissal denying refund of additional customs duty.

Appellant’s contentions:- Ld. Counsel for the appellant submitted that different amounts of refund were involved in all the 10 appeals while the issue was same. The appellant being a trader of medicine and paid sales tax against sale of such goods claimed refund of additional duty of customs paid at the time of import as such refund was due to the appellant in terms of the aforesaid notification. There was no dispute of payment of additional duty of customs nor payment of sales tax by the appellant.
Inviting attention to page 49 of the appeal folder of appeal case No. C/683/2010, it was submitted by ld. Counsel that a self declaration was given as required under para 2(b) of the above notification and that was filed before ld. Adjudicating authority. The goods imported being medicine and the importer appellant being a trader and the goods sold being final product, the invoices did not warrant stamping to fulfill requirement of para 2(b) of the aforesaid Notification as self declaration was given as was apparent from Page 49. The appellant was not registered as central excise assessee and the person buying goods had no chance of taking credit as the appellant had not issued cenvatable invoice but commercial invoice only to the buyers.
It was further submitted that there was no need of declaration as notified by Government in terms of Notification No. 29/2010-Cus., dated 27-2-2010 indicating that all pre-packed goods intended for retail sale and governed by Standards of Weights and Measures Act, 1976 of the Rules framed thereunder were immune. This had superseded the declaration to be made as required by the customs Notification No. 102/2007, dated 14-9-2007. The Notification No. 296/2010-Cus., dated 27-2-2010 stated that additional duty on import was refundable which were packed and governed by above special law irrespective of falling of such goods under any of the Chapters of the Customs Tariff Act, 1975.
It was further submitted that the appellant could not be deprived of the refund when all the documents were furnished before ld. Adjudicating Authority and notification dated 27-2-2010 warranted liberal interpretation in view of compliance available at page 46 of the appeal folder supporting the refund application. But those were ignored. The appellant got support for its contention from the decision of the Tribunal in the case of Equinox Solution Ltd. v. CCE - 2011 (272)E.L.T.310 (Tri.-Mumbai). According to appellant this decision was applicable on the ground that commercial invoice establishes that buyer could not take credit of the special additional customs duty and that was sufficient compliance without the condition of para 2(b) being mandatory. Relying on the decision in the case of Gujarat Boron Derivatives Pvt. Ltd. v. Commissioner reported in 2012 (280)E.L.T.94 (Trib.)submitted that doctrine of unjust enrichment does not apply to the case as no burden was shifted to the buyers since refund was claimed by the appellant. Further reliance was placed in the case of MIRC Electronics Ltd. v. CC, reported in 2013 (287)E.L.T.225 (Tri.-Ahmd.)to submit that certificate of Chartered Accountant should be good evidence in absence of any contrary evidence to rebut that and Revenue could not ignore Chartered Accountants certificate to hold that the appellant was unjustly enriched. Even Revenues stand that the appellant was unjustly enriched does not sustain in view of these decisions. When the Chartered Accountant Certificate was not in question in the adjudication, the finding of ld. Commissioner (Appeals) in para 6(b) was unwarranted. Appellant further relied on Apex Court decision in Commissioner v. Malwa Industries Ltd. - 2009 (235)E.L.T.214 (S.C.)to submit that intention of legislature could be gathered from subsequent notification.

Respondent’s contentions:- Revenue supported the appellate order and submitted that denial of refund to the appellant was justified.

Reasoning of judgment:- Since entire dispute was narrowed down to the issue of compliance to the condition under para 2(b) of Notification No. 102/2007, dated 14-9-2007, it would be sufficient if it was held that declaration on the invoices issued was mandatory and the trader appellant was not immune from compliance to the said mandatory requirement of the notification. There was nothing in the notification to discriminate a manufacturer from a trader when the importer of the goods claiming refund had an obligation under law to be declared on the invoice itself that the goods sold under that invoice shall not enjoy credit of additional duty of customs levied under Section 3(5) of Customs Tariff Act, 1975.
A Notification benefit being given at the cost of people of India the condition could not be said to be directory without being mandatory. Every benefit through notification was granted with conditions, stipulations and limitations to safeguard interest of Public Revenue. When the appellant failed to make a declaration it could not be said to be a technical lapse where as breach of compliance to the Notification No. 102/2007 debars to the benefit granted by that. The spirit of the declaration could be appreciated from the object it was expected to achieve. The declaration envisaged that expression thereof on the invoice shall make the buyer beware that no credit of additional duty of customs shall be admissible and that shall invite attention of all user of the said document. Therefore, such a precaution could not be interpreted to be a technicality of the notification. It was a mandatory requirement and breach thereof shall disentitle the appellant to the benefit of refund of additional duty of customs. Irrespective of the status of the appellant whether as a trader or a manufacturer that does not bring the appellant to a different footing when compliance to the requirement of Notification stated above was mandatory and not discretionary or discriminatory.
Appellant’s plea that the subsequent Notification No. 29/2010-Cus., dated 27-2-2010 should be read as clarificatory and retrospective. This was inconceivable for the reason that benefit granted by a Notification operates from the date that was notified and that does not intend the benefit to flow at public cost retrospectively. Therefore grant of the Notification in question could not be construed to be retrospective in nature. Accordingly the appellant fails to succeed on the plea of lateral notification operating retrospectively. Accordingly appellant fails gain from the Judgment of Apex Court in Malwas Industries case (supra).
We had perused the decision cited in Equinox’s case (supra). We were not satisfied that the commercial invoice need not carry declaration. As the issue involved in this case was not unjust enrichment, the other citations relied by appellant was not profitable. When the law was well clear that invoices issued should carry the declaration as mandatory condition to get refund, there was no discretion permitted by law. The appellant substantially lose its appeal on the ground of failure to comply to the mandatory requirement of the Notification for which all the appeals were dismissed.

Decision:- Appeals dismissed.

Comment:- The analogy drawn from the case is that when the assessee fails to make a declaration it could not be said to be a technical lapse where as breach of compliance to the Notification No. 102/2007 debars to the benefit granted by it . Such a precaution in form of said declaration could not be interpreted to be a technicality of the notification. It was a mandatory requirement and breach thereof shall disentitle the appellant to the benefit of refund of additional duty of customs. Irrespective of the status of the appellant whether as a trader or a manufacturer that does not bring the appellant to a different footing when compliance to the requirement of Notification stated above was mandatory and not discretionary or discriminatory. The said notification could not be read as clarificatory and retrospective. This was inconceivable for the reason that benefit granted by a Notification operates from the date that was notified and that does not intend the benefit to flow at public cost retrospectively.

Comments

PJ/Case Law/2013-14/1981

Post a Comment

Query