2016 (4) TMI 487 - AT - Customs

Refund claim of 5% additional duty - levied under sub-section 5 of section 3 of Customs Tariff Act, 1985 - Goods imported and cleared in terms of Notification No. 102/2007 dated 14.09.2007 - Held that - the Ld. Commissioner (Appeals) in his impugned order has not discussed the merits of the case and remand the matter back to the lower appellate authority, which is beyond the jurisdiction w.e.f. 11.05.2001 under Finance Act, 2001 as observed by the Tribunal, in the case of CC (Imports), Mumbai Vs. Clestra Modular Systems Pvt. Ltd. 2009 (9) TMI 751 - CESTAT MUMBAI . Further, the LB of this Tribunal has held that even if there is no endorsement in the commercial invoices, the SAD of refund should be allowed. Therefore, by following the same, the impugned order is set aside. - Decided in favour of appellant

Summary

Issues:
- Refund application for additional duty
- Genuinity of stamp endorsements on sales invoices
- Jurisdiction of the Commissioner (Appeals)
- Compliance with statutory provisions
- Remand of the matter back to lower authority

Refund Application for Additional Duty:
The case involved M/s. K.I. International Ltd., Chennai, filing a 5% additional duty refund application for goods imported and cleared under Notification No. 102/2007. The Dy. Commissioner of Customs sanctioned the refund, but the department appealed, alleging that stamp endorsements on sales invoices were not genuine and were added later for claiming refunds. The Ld. Commissioner (Appeals) remanded the matter back for verification of sales invoices with the original records. The appellant challenged this decision before the Tribunal.

Genuinity of Stamp Endorsements on Sales Invoices:
The appellant argued that all statutory conditions for the refund were met, as detailed in the Order-in-Original. They cited precedents to support their case, emphasizing that even without endorsements on commercial invoices, the refund should be allowed if other conditions are satisfied. The Tribunal agreed, setting aside the Ld. Commissioner (Appeals) order and allowing the appeal.

Jurisdiction of the Commissioner (Appeals):
The Ld. Commissioner (Appeals) remanded the case back to the lower authority, which was challenged by the appellant citing lack of jurisdiction post the Finance Act, 2001. The Tribunal upheld the appellant's argument, stating that the Ld. Commissioner (Appeals) exceeded jurisdiction by remanding the case and set aside the impugned order.

Compliance with Statutory Provisions:
The Order-in-Original detailed the fulfillment of conditions under Notification No. 102/2007 by the appellant, establishing that the additional duty paid was not passed on to customers and the refund was justified. The Tribunal noted the compliance with statutory provisions and upheld the refund claim.

Remand of the Matter Back to Lower Authority:
The Tribunal found that the Ld. Commissioner (Appeals) erred in remanding the case back to the lower authority and set aside the decision, allowing the appellant's appeal. The Tribunal emphasized that fulfillment of exemption notification conditions is crucial for availing exemptions, even without specific endorsements on invoices.

In conclusion, the Tribunal's judgment favored the appellant, highlighting compliance with statutory provisions, dismissing concerns about stamp endorsements on invoices, and addressing the jurisdictional issue of remanding the case back to the lower authority. The appeal was allowed, and the impugned order was set aside.