2023 (1) TMI 878 - AT - Customs

Refund of SAD - non-submission of Calculation-Cum-Co-relation sheet, Sale invoices for respective Bills of Entry, VAT/CST challan and returns, Summary of sale invoices and Authority letter - CA certificate not available - HELD THAT - The issue herein is squarely covered by the interpretation of the Larger Bench of this Tribunal in the case of CHOWGULE COMPANY PVT LTD VERSUS COMMISSIONER OF CUSTOMS CENTRAL EXCISE 2014 (8) TMI 214 - CESTAT MUMBAI (LB) in favour of the appellant-assessee where it was held that A trader-importer, who paid SAD on the imported goods and who discharged VAT/ST liability on subsequent sale, and who issued commercial invoices without indicating any details of the duty paid, would be entitled to the benefit of exemption under Notification 102/2007-Cus, notwithstanding the fact that he made no endorsement that credit of duty is not admissible on the commercial invoices, subject to the satisfaction of the other conditions stipulated therein. It is apparent from the copy of receipt for filing refund claim that the appellant had filed the copy of sale invoices and also summary of sale invoices etc. Thus, the refund claim has been rejected without any reason and on flimsy ground. Further, such rejection of refund is bad in law and also ignoring the binding judgment of this Tribunal in the case of Chowgule Company Pvt Ltd. The Adjudicating Authority is directed to grant the refund within a period of 60 days from the date of receipt of the copy of this order, alongwith interest as per rules - Appeal allowed.

Summary

Issues:
Refund claim of Special Additional Duty (SAD) on imported goods under Notification No. 102/2007-Cus - Compliance with conditions for refund - Rejection of refund claim by revenue - Appeal against rejection before Commissioner (Appeals) - Interpretation of conditions for refund under the notification - Applicability of previous Tribunal ruling in similar cases.

Analysis:
The appellant, an importer-trader, imported computers for resale and paid 4% SAD at the time of import. They filed a refund claim for SAD paid on 60 Bills of Entry totaling Rs. 16,12,974. The conditions for refund under Notification No. 102/2007-Cus required, among others, the importer to pay all duties at the time of import, indicate no credit of SAD on sale invoices, file a refund claim with customs officer, pay appropriate sales tax on resale, and provide necessary documents with the claim.

The revenue raised discrepancies in the refund claim, including the absence of a calculation-cum-co-relation sheet and sale invoices. The appellant argued that as per a Larger Bench Ruling of the Tribunal, the absence of the required endorsement on sale invoices did not affect refund eligibility if other conditions were met. The refund claim was rejected for non-submission of various documents, leading to the appeal before the Commissioner (Appeals).

The Commissioner upheld the rejection, prompting the appellant to appeal further. The appellant contended that the rejection based on non-compliance with condition 2(b) was inconsistent with the Tribunal's ruling. Regarding condition 2(e)(ii) requiring submission of sale invoices, the appellant claimed to have submitted the invoices twice. The appellant sought the allowance of the appeal.

In the judgment, the Member (Judicial) referred to the Larger Bench ruling in the case of Chowgule & Company Pvt Ltd, which favored the appellant-assessee. The Member found that the rejection based on condition 2(e)(ii) was unfounded, as the appellant had indeed submitted the required documents. The rejection was deemed legally flawed and contrary to the Tribunal's binding judgment.

Consequently, the appeal was allowed, setting aside the impugned order, and directing the Adjudicating Authority to grant the refund within 60 days along with interest as per rules. The judgment highlighted the importance of complying with conditions for refund under the notification and reiterated the significance of legal precedents in determining such cases.