2016 (12) TMI 640 - AT - Customs

Refund claim - SAD - Held that - The issue whether for availing benefit of Notification No. 102/2007, the condition 2 (b) of the Notification is mandatory for compliance by a trader came up for analysation before the Larger Bench of the Tribunal in the case of Chowgule and Company Private Ltd., 2014 (8) TMI 214 - CESTAT MUMBAI (LB) relied by the Ld. Counsel for appellant. The Ld. Counsel has also submitted that the duty element was not declared in the invoice. In the said case the Larger Bench of the Tribunal has held that the said condition is not mandatory in the case of a trader - Following the judgment laid by the Larger Bench in the case M/s Chowgule and Company Private Ltd., I hold that the appellant is eligible for refund. The impugned order for rejecting the refund is allowed - appeal allowed - decided in favor of appellant-assessee.

Summary

Issues:
Refund application for Additional Duty of Customs (SAD) rejection based on non-compliance with Notification No. 102/2007-Customs condition.

Analysis:
The appellant filed a refund application for &8377; 69,750 claiming a refund of 4% Additional Duty of Customs (SAD) paid on imported goods. The Commissioner (Appeals) upheld the rejection of the refund claim due to non-compliance with para 2 (b) of Notification No. 102/2007-Customs, which required an endorsement on the invoices stating that no credit of the additional duty shall be admissible. The appellant argued that as a trader, not a dealer or manufacturer, passing on the credit was irrelevant, citing a precedent by the Larger Bench of the Tribunal.

The Advocate for the appellant contended that the non-fulfillment of the condition should not be fatal to the refund claim. On the other hand, the Joint Commissioner (AR) for the Respondent emphasized the strict construction of the conditions in the Notification, stating that non-compliance justified the rejection of the refund claim. Reference was made to a judgment by the Hon'ble Apex Court to support this argument.

The Tribunal analyzed whether compliance with condition 2 (b) of Notification No. 102/2007 was mandatory for traders, as discussed in the case of Chowgule and Company Private Ltd. The Tribunal held that the duty element should be declared in the invoice for availing benefits, and non-declaration implies no credit availability. Relying on this interpretation, the Tribunal concluded that the appellant was eligible for a refund, overturning the rejection and allowing the appeal with consequential reliefs.

In conclusion, the Tribunal's decision was based on the interpretation of the Notification's conditions and the applicability of such conditions to traders. The judgment highlighted the importance of declaring the duty element in invoices for claiming refunds and emphasized the need for a strict but context-specific approach to compliance.