2013 (11) TMI 756 - AT - Customs

Refund of SAD - failure to make declaration on the Invoice for non availment of credit - Import of human growth hormone injections under 7 Bills of Entry - Benefit of Notification No. 102/2007-Cus., dated 14-9-2007. - Held that - The purpose of a declaration as stipulated in para 2(b) of Notification No. 102/2007-Cus., dated 14-9-2007 is to deny double benefit i.e. the buyer of the goods takes the credit of the SAD paid, while the seller gets refund of the SAD paid. In order to prevent this, the aforesaid declaration has been prescribed in the Notification. However, in the present case, the appellant is not a registered dealer who is authorized to issue Cenvatable invoices. Secondly, the invoices issued by the appellant, copies of which we have perused, do not indicate the SAD paid. Cenvat credit can be availed only when the invoices are issued by a manufacturer or an importer or a registered dealer. Inasmuch as the appellant is not a registered dealer, the question of taking credit on the strength of invoices issued by him does not arise at all. Further, the invoices do not indicate the amount of SAD paid. In the absence of such a detail, the question of availing Cenvat credit also does not arise. Thus, the object and purpose of the declaration is achieved in the present case. The appellant has paid SAD at the time of importation and they also paid Sales Tax/VAT while selling these goods and therefore, the appellant is rightly entitled for the benefit of refund under the aforesaid Notification subject to the bar of unjust enrichment - Decided in favour of asseessee.

Summary

Issues:
Refund claim for Special Additional Customs Duty under Notification No. 102/2007-Cus rejected due to non-declaration on sale invoices.

Analysis:
The appellant imported goods and paid import duty, including Special Additional Duty of Customs, subsequently selling the goods and paying VAT/Sales Tax. The refund claim for Special Additional Customs Duty under Notification No. 102/2007-Cus was rejected due to the absence of a specific declaration on sale invoices as required by para 2(b) of the Notification. The lower appellate authority upheld the rejection, leading to the appellant's appeal before the Tribunal.

The appellant's consultant argued that as they were not registered dealers for issuing Cenvatable invoices, the requirement for the declaration should not apply to them. He contended that the invoices did not detail the Customs duties paid, making it impossible for buyers to avail Cenvat credit. Citing precedents, the consultant urged that the non-declaration was a technical infraction and should not bar the refund claim. The Tribunal noted that the purpose of the declaration was to prevent double benefits, but the appellant, not being a registered dealer, was not eligible to issue Cenvatable invoices. The invoices also lacked information on the SAD paid, further precluding Cenvat credit. Despite the technical non-compliance, the Tribunal held that the appellant, having paid SAD and Sales Tax/VAT, was entitled to the refund under the Notification, subject to the unjust enrichment principle.

In conclusion, the Tribunal allowed the appeal, granting the appellant the refund of duty under Notification No. 102/2007-Cus, emphasizing that substantive benefits should not be denied due to procedural or technical infractions. The decision aligned with previous Tribunal rulings on similar cases, establishing the appellant's eligibility for the refund, contingent upon the unjust enrichment test.