2013 (11) TMI 888 - AT - Customs

Refund of ACD / SAD - Notification No. 102/2007-Cus dated 14.9.2007 - Goods imported by the appellants were subsequently sold by them by raising the invoice - The said invoice also bear endorsement as - we do hereby certify that we have not given the credit of Additional Customs duty in this invoice - Orginal adjudicating authoruty sactioned Refund claim - Commissioner set aside order of refund - Held that - condition only requires that the importer while issuing the invoice for sale of the goods, specifically indicate in the invoice that no credit of the additional duty of customs levied under sub section (5) of Section 3 of Customs Tariff Act, 1975 shall be admissible. Admittedly, the appellants in their sales invoices has endorsed the same laying down that - we do hereby certify that we have not given the credit of Additional duty of Customs in this invoice . The reason of the appellate authority that such endorsement is not as per the language of condition 2(b) of the notification cannot be appreciated as it only requires the importer to specifically indicate in the invoice that no credit of Additional duty of Customs is admissible to the buyers of the goods. First of all, the same cannot be considered to be a language required to be picked up by the importer for the purpose of endorsing the invoice. The purpose of said condition is that a clear endorsement should be made on the invoice to indicate that no credit of Additional customs duty paid is available to the buyer as credit. Admittedly, such endorsement stand made by them. The wordings of the language used will not make the difference as long as the intent and purpose of making endorsement is satisfied - Following decision of assessee s own case in 2009 (10) TMI 823 - CESTAT NEW DELHI - Decided in favour of assessee.

Summary

Issues involved:
Refund of additional customs duty paid on imported goods as per Notification No. 102/2007-Cus dated 14.9.2007.

Analysis:
1. The appellants imported special high grade zinc and paid additional customs duty (ACD) at 4% as per Notification No. 102/2007-Cus. The condition for refund required the invoice to indicate that no credit of the additional customs duty shall be admissible at the time of sale.

2. The appellants endorsed their sales invoice stating that ACD is not applicable and certified that they did not pass on the credit of ACD. The original adjudicating authority approved their refund claim based on these endorsements and a certificate from a Chartered Accountant.

3. The Revenue appealed to the Commissioner (Appeals) arguing that the wording of the certificate on the invoices did not match the language specified in Condition 2(b) of the notification, leading to the denial of the refund claim.

4. The Tribunal examined the wording of Condition 2(b) of the notification, which only required the importer to indicate in the invoice that no credit of ACD shall be admissible. The Tribunal found that the appellants' endorsement on the invoice fulfilled this requirement, emphasizing that the intent and purpose of the condition were met.

5. Additionally, the Tribunal noted that if an invoice indicates ACD as not applicable, the question of availing credit does not arise. Previous Tribunal decisions supported this interpretation, stating that showing nil or zero duty on invoices is sufficient compliance with the endorsement condition.

6. Referring to a previous case involving the same appellants, the Tribunal highlighted that the wording of the certificate on the invoices did not need to match the exact language of the notification as long as the intent was clear, leading to the restoration of the original authority's decision to grant the refund.

7. Ultimately, the Tribunal set aside the Commissioner (Appeals) order and allowed the appeals, providing consequential relief to the appellants based on consistent interpretations and precedents in similar cases.

This detailed analysis of the judgment highlights the key legal arguments, interpretations, and precedents considered by the Tribunal in deciding the issue of refund of additional customs duty paid by the appellants.