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2016 (6) TMI 11 - AT - CustomsAdmissibility of refund claim - Special refund mechanism as per exemption notification no. 102/2007-CUS dated 14/09/2007 - SAD leviable under sub-section (5) of Section 3 of Customs Tariff Act, 1975 is refundable as the appellant had sold the goods so imported - Certificate from Chartered Accountant indicating the sale of goods and amount of VAT/CST payable has been paid - Held that - the goods which were let out of charge has been sold by the very said invoice, there is no other contrary finding by the First Appellate Authority that the goods were not sold. Be that as it may, it is found that the conditions of the Notification No. 102/2007-CUS, are complied with by the appellant. Also the issue now stands settled in the favour of the appellant by the judgment of the Tribunal in the case of Glasstech India Versus Commissioner of Customs, Ghaziabad 2015 (1) TMI 160 - CESTAT NEW DELHI . In view of the foregoing, there being no dispute as to the sale of the goods though the out of charge was given after date of sale, therefore, the impugned orders are unsustainable and liable to be set aside. - Decided in favour of appellant with consequential relief
Issues:
Refund claim under special refund mechanism based on exemption notification no. 102/2007-CUS; Rejection of refund claim by Adjudicating Authority; Appeal before First Appellate Authority; Interpretation of date of sale in relation to goods being let out of charge; Compliance with conditions of Notification No. 102/2007-CUS; Application of precedent set by Tribunal in the case of Glasstech India. Analysis: The appeal in this case was filed against the Order-in-Appeal No. CC (A) CUS/ICD/TKD (IMP) 1226/2015 dated 18/12/2015. The appellant had filed a refund claim of &8377; 5,36,278/- under a special refund mechanism as per exemption notification no. 102/2007-CUS, stating that the Special Additional Duty of Customs (SAD) was refundable as the goods imported had been sold. The Adjudicating Authority allowed a refund of &8377; 3,63,599/- but rejected a refund claim of &8377; 1,72,679/-, citing that the goods were let out of charge after the sale date mentioned in the invoice. The First Appellate Authority upheld the original order, leading to the appeal. During the proceedings, the appellant's counsel argued that the goods were sold on 17/10/2014, and the Tribunal had previously ruled in a similar case that refund cannot be denied in such situations. On the other hand, the Revenue's representative contended that without a clear correlation between the invoices and the release of goods, the question of whether the goods were actually sold could not be definitively answered, justifying the rejection of the refund claim. Upon reviewing the facts and submissions, it was established that the goods imported were indeed sold, as confirmed by the Adjudicating Authority's findings and a certificate from a Chartered Accountant. Despite the goods being released from charge after the sale date, the conditions of Notification No. 102/2007-CUS were met. The judgment in the case of Glasstech India was cited to support the appellant's position. Consequently, the Tribunal found that the impugned orders were unsustainable, setting them aside and allowing the appeal with consequential relief to the appellant.
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