2013 (11) TMI 1040 - AT - Customs

Import of timber - Notification No.102/07 - Refund of SCVD paid upon sale of the goods in local market - Whether the respondents fulfilled all the conditions of exemption notification dated 14.9.2007 or not - Held that - whether the conditions are to be satisfied or not, has to be viewed from attending facts and circumstances of the case. The words when imported into India for subsequent sale or the sale of said goods , cannot be seen in isolation. It is not in dispute that except for the above mentioned objection of the department, all other conditions specified in the exemption notification, have been fulfilled by the respondents. It is also not in dispute that the proper documents were filed and that the goods were imported after paying the SCVD, upon which ultimately the goods were sold in the local market and Sales tax or VAT, as applicable, was also paid. Respondents imported the goods after paying SCVD. At the time of its sale in the local market, they also paid local taxes such as sales tax or the Value Added Tax as may be applicable. Before transportation of timber, they were required to reduce its size since the RTO rules did not permit transportation of logs longer than 40 feet. If only for cutting length of the logs, which were in excess of 40 feet, sawing operations were carried out and after some cleaning and scaring was done, timber logs of smaller pieces were sold, we do not see how respondents can be stated to have breached any of the conditions of the exemption notification dated 14.9.2007 - Following decision in the case of M/s Agarwala Timbers Pvt. Ltd. 2010 (9) TMI 950 - CESTAT AHMEDABAD - Decided against Revenue.

Summary

Issues Involved:
1. Condonation of delay in filing appeals.
2. Validity of the appeals based on alleged manipulation of invoices.
3. Authority of Commissioner (Appeals) to remand cases.
4. Examination of evidence and merits of the refund claims.

Detailed Analysis:

1. Condonation of Delay in Filing Appeals:
The Revenue filed applications for condonation of delay of 25 to 28 days in filing the appeals. The Tribunal found the delay to be marginal and properly justified, thus condoning the delay and directing the Registry to take on record the Stay Petitions and the appeals.

2. Validity of the Appeals Based on Alleged Manipulation of Invoices:
The first appellate authority noted that despite multiple requests for evidence, the appellant-department failed to provide concrete evidence of manipulation of invoices. The department's claims were based on assumptions and presumptions without substantiated evidence. The adjudicating authority had scrutinized the records and found no manipulation. The Tribunal upheld this finding, emphasizing that assumptions and presumptions without evidence vitiate proceedings, as established in Commissioner of Customs (Imports), Chennai Vs Flemingo (DFS) Pvt. Ltd.

3. Authority of Commissioner (Appeals) to Remand Cases:
The Tribunal addressed the contention that the Commissioner (Appeals) does not have the power to remand cases. It referred to the Hon'ble CESTAT, Ahmedabad's judgment in Bacha Motors (Pvt.) Ltd. vs. Commissioner of Service Tax, Ahmedabad, and other relevant cases, concluding that the Commissioner (Appeals) does have the power to remand even after the amendment of Section 35A(3) of the Central Excise Act, 1944. However, in the present cases, the Tribunal found that the appeals for remand were not sustainable due to lack of evidence.

4. Examination of Evidence and Merits of the Refund Claims:
The Tribunal examined the facts and records of the cases, noting that the adjudicating authority had verified the documents and found no manipulation. The appellant-department's failure to provide evidence of manipulation led to the dismissal of their appeals. The Tribunal referenced its previous decision in the case of M/s Agarwala Timbers Pvt. Ltd., which was upheld by the Hon'ble High Court of Gujarat, reinforcing the correctness and legality of the first appellate authority's order.

Conclusion:
The Tribunal dismissed all the appeals filed by the Revenue, finding no infirmity in the first appellate authority's order and emphasizing the necessity of concrete evidence to substantiate claims of invoice manipulation. The decision highlights the importance of evidence-based adjudication and the authority of the Commissioner (Appeals) to remand cases when justified.