2019 (10) TMI 420 - AT - Customs

Refund of SAD - benefit of N/N. 102/97-Cus. - denial on the ground of unjust enrichment - the goods were imported and utilized in civil construction, as the respondent assessee is engaged in construction of buildings and selling the same to the various buyers of unit in the said building, being dwelling units - rejection also on the ground that the adjudicator observed that the burden of passing on of SAD is not clear from the facts on record - rejection also on the ground of non submission of sale invoice for resale of the imported goods. HELD THAT - The Commissioner (Appeals) was justified in holding that in case of imported goods being used for construction of an immovable property, being a case of deemed sale or passing of the property in goods used in construction, no separate tax invoice needs to be issued, as the conveyance is done through deed of sale, duly registered before the competent authority. That in such cases, the requirement of invoice for the sale is substituted by the deed of conveyance. Secondly, there is no case made out of the imported goods being consumed. It is not the case of revenue that the goods are in the nature of fuel or pesticides (consumables), etc., which are not transferable after its use in the civil construction - As there is no tax invoice or any other invoice, hence there is no question of passing on of SAD to the buyer of the dwelling units/commercial units. Refund allowed - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Delay in filing appeals by revenue.
2. Rejection of refund claim by Assistant Commissioner.
3. Consideration of unjust enrichment and VAT payments.
4. Appeal before Commissioner (Appeals) and subsequent decision.
5. Grounds of appeal by revenue before the Tribunal.
6. Tribunal's analysis and decision on the case.

Delay in Filing Appeals:
The revenue filed appeals with a delay of about 30 days, attributing it to verification of facts and decision-making process. The delay was condoned, and the appeals were taken up for final hearing despite the absence of the respondent assessee.

Rejection of Refund Claim:
The rejection of the refund claim was based on various reasons, including the utilization of goods in civil construction, lack of clarity on passing on of Special Additional Duty (SAD), and non-submission of sale invoice for resale of imported goods.

Consideration of Unjust Enrichment and VAT Payments:
The respondent importer provided various documents to support the refund claim, including TR 6 challans, certificates from chartered accountants, and agreements with buyers of residential/commercial units. The Commissioner (Appeals) observed compliance with VAT laws and the composition scheme, certifying the non-passing on of SAD burden.

Appeal Before Commissioner (Appeals) and Decision:
The Commissioner (Appeals) allowed the appeal, setting aside the original order, based on the Tribunal's precedent and the impossibility of issuing invoices due to the VAT consumption scheme.

Grounds of Appeal Before Tribunal:
The revenue contended that the requirement of invoices for sale was not satisfied, alleging captive consumption instead of resale, and challenging the acceptance of difficulties in issuing tax invoices under the VAT scheme.

Tribunal's Analysis and Decision:
The Tribunal upheld the Commissioner (Appeals)' decision, emphasizing that in cases of goods used for construction, no separate tax invoice is needed, and the deed of conveyance substitutes the invoice. It dismissed the appeals, stating that the imported goods were not consumed but transferred, attracting sales tax liability, and there was no passing on of SAD without invoices.

In conclusion, both appeals were dismissed, CoD applications were allowed, and the respondents were entitled to benefits as per the law.