2018 (7) TMI 104 - AT - Customs

Refund of SAD - N/N. 102/2007-Cus. dated 14.09.2007 - rejection on the grounds that the invoices do not bear the endorsement that the Cenvat credit is not admissible and also for the reason that the invoices do not show that the goods have been sold - Held that - On the invoices the description of the goods is shown as STB, wherein the Ld. Counsel has explained that this is an abbreviation of Set Top Box. Invoices clearly show that the appellant has specifically stated that they have not passed on the Cenvat credit. It is clearly stated in the invoices that no Cenvat credit is admissible - Appellant is eligible for refund - appeal allowed - decided in favor of appellant.

Summary

Issues involved: Refund claims for SAD rejection based on invoices not showing goods sold and lack of endorsement regarding inadmissible Cenvat credit.

Analysis:
The appellant filed refund claims for refund of SAD under Notification No. 102/2007-Cus. The original authority and Commissioner (Appeals) rejected the claims citing reasons like invoices not showing goods sold and lack of endorsement regarding inadmissible Cenvat credit. The appellant argued that the goods were transferred on a 'right to use basis' to DTH subscribers, constituting deemed sales, supported by previous decisions. The Tribunal noted that the invoices described goods as STB (Set Top Box), clarified as an abbreviation for Set Top Box by the appellant's counsel. Referring to a Delhi Tribunal decision upheld by the High Court, the Tribunal concluded that the transfer of right to use goods constitutes deemed sale, making the appellant eligible for refund. The invoices explicitly stated that no Cenvat credit was passed on, making the rejection of refund unjustified. Consequently, both appeals were allowed with consequential reliefs, holding the appellant eligible for refund.