2016 (6) TMI 223 - AT - Customs

Allowability of refund of SAD - Notification No.102/2007 - Unjust enrichment - appropriate endorsement was not in the invoice as to non-availment of Cenvat credit in respect of the goods covered by such invoice - some discrepancy both in bill of entry and the sales invoices that causes anxiety to Revenue as to whether the goods imported were actually sold or not to get the refund of Additional Duty of Customs. Held that - so far as the no declaration of allowance of Cenvat credit of the duty paid is concerned, the appellant gets relief on that count. But, in the case of discrepancy between the bill of entry and the sales invoice, reconciliation has to be carried out. So far as the unjust enrichment is concerned, the Adjudicating Authority shall take care of that examination. To carry out the aforesaid exercise, the appellant has to make an application to the Adjudicating Authority by the end of May, 2016 for fixation of the date of hearing during 2016. On the date fixed, without taking adjournment, the appellant shall provide relevant evidence for reconciliation and testing of the unjust enrichment issue. Upon examination and granting reasonable opportunity of hearing to the appellant, the authority shall pass appropriate order by end of July, 2016. With the aforesaid direction all the appeals are disposed allowing on certain points and remanding on certain points. - Appeals are partly allowed and partly remanded.

Summary

Issues:
1. Denial of refund due to lack of appropriate endorsement on the invoice regarding non-availment of Cenvat credit.
2. Discrepancy between bill of entry and sales invoices causing concern for Revenue.
3. Incorrect certificate by Chartered Accountant leading to unjust enrichment issue.
4. Need for reconciliation of discrepancies and examination of unjust enrichment.
5. Filing of multiple appeals for the same cause.

Analysis:

1. The Tribunal addressed the issue of denial of refund due to the absence of an appropriate endorsement on the invoice regarding non-availment of Cenvat credit. Referring to the decision in the case of Chowgule & Co. Pvt. Ltd. Vs Commissioner of Customs, the Tribunal emphasized that the non-declaration of duty in the invoice implies the non-availment of credit, satisfying the conditions prescribed under the relevant notification.

2. The Tribunal acknowledged the concern raised by the department regarding a discrepancy between the bill of entry and the sales invoices. It was noted that such discrepancies need to be reconciled to ensure that the goods imported were indeed sold, thus justifying the refund of Additional Duty of Customs. The appellant was directed to appear before the Adjudicating Authority to address these discrepancies by a specified date.

3. The issue of an incorrect certificate by the Chartered Accountant was highlighted, leading to a potential unjust enrichment problem. The Tribunal instructed the Adjudicating Authority to examine whether the appellant had been unjustly enriched due to the erroneous certificate. The appellant was directed to provide relevant evidence for this examination by a specified date.

4. Regarding the multiple appeals filed for the same cause, the Tribunal clarified that there cannot be two appeals for the same issue. The Adjudicating Authority was tasked with informing the appellant about this and reconciling the differences between the appeals to ensure only one appeal is considered for the same period without duplicating refund claims.

5. In conclusion, the Tribunal partially allowed the appeals on certain points and remanded on others. The appellant was given specific deadlines to address the discrepancies, unjust enrichment issue, and the matter of multiple appeals. The Adjudicating Authority was directed to pass appropriate orders after due examination and hearing, ensuring compliance with the legal requirements and procedural fairness.