2017 (8) TMI 980 - AT - Customs

Refund of SAD - N/N. 102/2007-Cus dated 14.09.2007 - denial on the ground that the invoices have been raised prior to issuance of out of charge order issued by the customs authorities - Held that - the authorities below had acknowledged that the appellant had fulfilled all the conditions laid down under N/N. 102/2007-Cus dated 14.09.2007, therefore, denial of refund only on the ground that the sales invoices was raised prior to out of charge, is contrary to the principle of law laid down by this Tribunal in the case of Radius Infotech vs. Commissioner of Customs, New Delhi 2016 (3) TMI 189 - CESTAT NEW DELHI , where the refund was allowed by holding that the appellant submitted delivery challan and the other evidence along with the terms of agreement to establish that the issue of invoice 5 days before the release of the goods by the Customs by itself does not prove that the goods have been sold and delivered to the buyers - appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claims under Notification No.102/2007-Cus dated 14.09.2007 for Special Additional Duty (4% SAD) - Rejection based on timing of invoice issuance before out of charge order by customs authorities.

Analysis:
The judgment pertains to two appeals challenging the rejection of refund claims of ?91,959 and ?62,965 for Special Additional Duty (4% SAD) under Notification No.102/2007-Cus dated 14.09.2007. The main issue revolves around the timing of invoice issuance before the out of charge order by customs authorities. The appellants contended that they fulfilled all conditions under the notification, including discharging VAT on imported goods and producing necessary documents. The refund claims were denied solely due to invoices being raised before the out of charge order. However, both lower authorities acknowledged compliance with Notification No.102/2007-Cus. The appellant cited the principle established in Radius Infotech vs. Commissioner of Customs, New Delhi, where the Tribunal held that the mere timing of invoice issuance does not prove sale and delivery of goods, especially when supported by evidence like delivery challans and reconciliation certificates by a Chartered Accountant.

The Tribunal, in line with the Radius Infotech case, found the rejection of refund solely based on invoice timing as unsustainable. The appellant's submission of supporting documents and fulfillment of conditions under the notification were deemed sufficient to establish entitlement to the refund claims. Consequently, the impugned orders were set aside, and the appeals were allowed with consequential relief, if any, as per law. The decision emphasizes the importance of considering all relevant evidence and compliance with statutory requirements rather than solely focusing on procedural formalities like the timing of invoice issuance before the out of charge order by customs authorities.