2014 (11) TMI 856 - AT - Customs

Refund of SAD - Notification no. 102/2007 dated 14.09.2007 - Whether to avail the benefit of Notification no. 102/07, the condition 2(b) of the Notification is mandatory for compliance being a trader who cleared the goods on the strength of commercial invoices - Held that - A trader-importer, who paid SAD on the imported goods and who discharged VAT/ST 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 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, I hold 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 102/07 dated 14.09.2007 - Decided in favour of assessee.

Summary

Issues: Refund claim rejection under Notification no. 102/2007 due to non-compliance with condition 2(b) - Interpretation of conditions for availing benefit of Notification no. 102/2007.

Analysis:
1. Refund Claim Rejection: The appellants filed appeals against the impugned order rejecting their refund claim of Special Additional Duty (SAD) under Notification no. 102/2007. The rejection was based on the ground that the endorsement required by condition 2(b) of the said Notification, stating that no credit of additional duty was taken and the benefit of SAD was not passed on to the buyer, was not present.

2. Interpretation of Conditions: The appellant contended that as a trader, they cleared the imported goods by paying Central Sales Tax (CST)/Value Added Tax (VAT), and the invoices did not show any duty element as the goods were cleared under commercial invoices. They argued that compliance with condition 2(d) of Notification 102/2007 was indirectly met in this scenario. The Tribunal referred the matter to a larger bench to address the issue of whether compliance with condition 2(b) of the Notification is mandatory for traders clearing goods based on commercial invoices.

3. Tribunal Decision: The Tribunal, in its decision (2014-TIOL-1191-CESTAT-MUM-LB), ruled that a trader-importer who paid SAD on imported goods, discharged VAT/ST liability on subsequent sales, and issued commercial invoices without duty details would be entitled to the benefit of Notification 102/2007. The Tribunal held that not making an endorsement on the invoice regarding inadmissibility of duty credit does not disqualify the trader from availing the benefit. Consequently, the appellants, having cleared imported goods by paying CST/VAT under commercial invoices, were deemed eligible for the refund claim under Notification 102/2007.

4. Final Decision: Based on the Tribunal's interpretation and decision, the appeals were allowed, and the appellants were granted consequential relief. The Adjudicating Authority was directed to implement the order within 30 days of receipt. The judgment clarified the conditions for availing benefits under Notification 102/2007 for trader-importers who clear goods based on commercial invoices, emphasizing compliance with the spirit rather than the literal interpretation of the conditions.