2019 (1) TMI 984 - HC - Customs

Refund of SAD - rejection on the ground that what was imported by the appellant was prime quality pre-painted aluminium zinc alloy coated steel sheet in coil form , whereas what was sold by the appellant as works contract service was material for laying of proflex roof, which fell under different classification - it was thus alleged that condition of N/N. 102/2007-Cus. dated 14.09.2007 that the goods imported were sold on payment of VAT/sales tax was not satisfied. Held that - It is apparent that an anomaly has arisen in two different judgments of the Tribunal on identical facts, on account of the appeals being bifurcated on the basis of pecuniary jurisdiction. In the opinion of this court, when all the appeals arise out of a common Order-in- Appeal and the facts are also identical, for the purpose of uniformity a similar order is required to be passed in all the appeals. When in one group of appeals arising out of the identical facts, the appellant has been permitted to claim the benefit of refund of 4% SAD on goods sold as such , the appellant cannot be denied the similar benefit in the other group of appeals. Under the circumstances, the anomaly that has arisen on account of the aforesaid circumstances needs to be rectified. The technical plea that such an issue was not raised before the Single Member Bench of the Tribunal would not come in the way of this court in rendering substantial justice in the present case. The question is answered in the affirmative, viz., that the appellant is entitled to similar relief as granted by the Division Bench of the Tribunal in the group of appeals arising out of the common order of the Commissioner (Appeals) - appeal allowed - matter is restored to the file of the adjudicating authority to ascertain the quantum of as such sale of the imported material sold in coil or sheet form, which alone can be considered for refund of 4% SAD paid at the time of import.

Summary

Issues:
Challenge to customs tribunal orders on refund claims under Notification No.102/2007-Cus. for imported goods sold as works contract service and "as such."

Analysis:
1. The appellant, engaged in steel roofing business, imported goods and claimed refund under Notification No.102/2007-Cus. for SAD paid on goods sold to customers. Customs authorities rejected the refund claims, stating the goods sold as works contract service did not meet the notification conditions. Commissioner of Customs (Appeals) upheld the rejection.

2. The appellant appealed to the Tribunal, where some appeals were dismissed, and others remanded to determine the "as such sale" component for refund eligibility. A rectification application was rejected for not raising the issue earlier. The appellant argued for parity in relief based on similar cases.

3. The appellant's counsel highlighted the inconsistency in tribunal decisions on identical issues. The Division Bench allowed refund claims for goods sold "as such," while the Single Member Bench dismissed similar appeals. The appellant sought uniformity in relief across all appeals for fairness.

4. The respondent argued against rectification, citing the issue not raised earlier. The appellant maintained the inclusion of goods sold "as such" in the claim and sought relief based on the Division Bench's decision for consistency.

5. The Court admitted the appeal and identified the substantial question of law regarding parity of relief in appeals with common facts. The Court acknowledged the appellant's entitlement to refund for goods sold "as such" based on the Division Bench's decision.

6. The Court noted the absence of bifurcation in earlier proceedings regarding goods sold as works contract and "as such." The appellant's rectification application was rejected for not raising the issue earlier. However, the Court emphasized the need for uniformity in decisions on identical issues for fairness.

7. The Court found an anomaly in tribunal judgments due to bifurcation based on pecuniary jurisdiction. It held that uniformity in decisions was necessary for similar cases arising from a common order. The Court granted relief to the appellant for goods sold "as such" to rectify the anomaly and ensure fairness.

8. Consequently, the Court allowed the appeal, directing the matter back to the adjudicating authority to determine the "as such sale" component for refund eligibility. The Court emphasized the need for consistent decisions on identical issues for fairness and ordered no costs for the appeal.