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2018 (7) TMI 187 - AT - CustomsRefund of SAD - N/N. 102/2007-Cus. dated 14.9.2007 as amended - refund was rejected on the ground that the sales invoice did not bear the endorsement that CENVAT credit of SAD is not admissible - Held that - The said issue stands decided in the case of Chowgule & Company Pvt. Ltd. 2014 (8) TMI 214 - CESTAT MUMBAI (LB) , where it was held that Condition relating to endorsement on the invoice was merely a procedural one and the purpose and object of such an endorsement could be achieved when the duty element itself was not specified in the invoice. Since the object and purpose of the condition is achieved by non-specification of the duty element the mere non-making of the endorsement could not have undermined the purpose of the exemption. However, taking note of the fact that the sales invoices have not been completely produced by the appellant, the matter requires to be remanded to the adjudicating authority who shall give an opportunity to the appellant to furnish the invoice. Appeal allowed by way of remand.
Issues:
Refund claim rejection based on missing endorsement on sales invoice under Customs Tariff Act, 1975. Analysis: The appellants, engaged in trading baby diapers in India, imported diapers and paid additional duty of customs (SAD) under section 3(5) of Customs Tariff Act, 1975. They sought a refund of the SAD paid under Notification No. 102/2007-Cus. The refund claim was rejected due to the absence of the required endorsement on sales invoices indicating that CENVAT credit of SAD is not admissible. The appellant contended that the issue was settled by a Larger Bench decision in Chowgule & Company Pvt. Ltd. Vs. Commissioner of Customs. The AR for the respondent highlighted that the appellant had not produced invoices, necessitating verification of their authenticity. The Tribunal noted that the rejection of the refund was solely based on the missing endorsement on the commercial invoices, a requirement under para 2(b) of the notification. Referring to the Chowgule & Company Pvt. Ltd. case and a similar decision in Chimanlal Fein Paper Pvt. Ltd. Vs. Commissioner of Customs, Chennai, the Tribunal agreed with the appellant's counsel that the issue had been addressed in previous judgments. However, as the sales invoices were not fully submitted by the appellant, the matter was remanded to the adjudicating authority. The authority was directed to allow the appellant to furnish the complete invoices and consider the applicability of the Chowgule & Company Pvt. Ltd. decision and the cited final order. In conclusion, the impugned order rejecting the refund claim was set aside, and the appeal was allowed for remand to the adjudicating authority. The Tribunal emphasized the need for the appellant to provide the complete sales invoices for further consideration in light of the legal precedents discussed during the proceedings.
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