2018 (2) TMI 583 - AT - Customs

Refund of SAD - rejection on the ground that the sale invoice does not contain no credit of additional duty of customs levied under sub-section (5) of Section 3 shall be admissible against this invoice - Held that - the matter is no longer res integra vide the Tribunal s decision in the case of Chowgule & Company Pvt. Ltd Vs. CCE 2014 (8) TMI 214 - CESTAT MUMBAI (LB) , wherein the Larger Bench has held that the endorsement is merely procedural one and the purpose and object of the endorsement could be achieved when the duty element is not specified in the invoice - refund allowed - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Refund claim rejection based on the absence of specific indication in the sale invoice regarding the admissibility of additional duty of customs.
2. Interpretation of condition 2(b) of Notification No.102/2007-Cus regarding the requirement for the importer to mention the inadmissibility of credit of additional duty of customs in the sale invoice.

Analysis:

Issue 1: Refund claim rejection
The appellant, engaged in trading and assembly of Wind Operated Electricity Generator (WOEG), imported goods with 4% Special Additional Duty (SAD) paid under Section 3(5) of the Customs Tariff Act, 1975. The refund claim for SAD on the imported goods was rejected due to the absence of a specific clause in the sale invoice stating that no credit of additional duty of customs shall be admissible. The Commissioner (Appeals) upheld the rejection, leading to the current appeal.

Issue 2: Interpretation of Notification No.102/2007-Cus
The key issue for appellate decision was whether the appellant complied with condition 2(b) of Notification No.102/2007-Cus, which necessitates the importer to indicate in the invoices that no credit of additional duty of customs will be admissible. The Tribunal referred to a precedent, Chowgule & Company Pvt. Ltd Vs. CCE, where it was held that the endorsement requirement is procedural, and the objective could be met even without specifying the duty element in the invoice. This interpretation has been consistently followed in various Tribunal decisions, including Equinox Solution Ltd Vs. CC, Nova Nordisk India Pvt. Ltd. Vs. CC, Vijay Steel Industries Vs. CC, Sri Sai Graphics Vs. CCE, and Narasingh Dass & Co. (P) Ltd. The appellant's representative reiterated the appeal grounds, while the department supported the impugned order.

In conclusion, the Tribunal, in line with the precedents, found that the rejection of the refund claim based on the absence of a specific clause in the sale invoice was not justified. The impugned order was set aside, and the appeal was allowed with any consequential relief as per law.