2017 (9) TMI 1509 - AT - Customs

Refund of SAD - N/N. 102/2007 CUS - whether the Commissioner (Appeals) have rightly held that the importer has imported sheet of Mirror of 1.8mm and sold the goods with description of 2.0mm, did not create any confusion that the goods which were imported are not the same, which were sold by the respondent? - Held that - From the description it is evident than they have sold 2.0mm mirror and the size mentioned therein 60 x 90 mentioned matches the size in the Bill of Entry. Further, the description IMP in the invoices stand for imported. Further, in the tax invoice it is mentioned that no credit of the additional duty of customs levied under Sub-section 5 of Section 3 of the Customs Tariff Act, 1975 shall be admissible in respect of the above goods - there is no material difference in mentioning the glass imported as 1.8mm Aluminium Coated Glass Sheet Mirror as 2.0mm mirror imported at the time of resale in the tax invoice - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Whether the discrepancy in the description of imported goods and goods sold justifies the denial of a refund under Notification No. 102/2007 CUS.

Analysis:
The appeal by the Revenue questioned the decision of the Commissioner (Appeals) regarding the discrepancy in the description of goods imported and sold by the respondent, leading to a claim for refund under Notification No. 102/2007 CUS. The respondent imported 1.8mm Aluminium Coated Sheet Glass Mirror but sold goods described as 2.0mm, prompting the Revenue to argue that the invoices submitted for the refund were not for the goods imported. The appellant contended that the thickness of 1.8mm should be considered as 2.0mm based on Bureau of Indian Standards specifications. The Commissioner (Appeals) allowed the appeal of the respondent, emphasizing that the tolerance limit specified by BIS for glass thickness was known in the trade, and the difference in thickness between the imported goods and goods sold was within the acceptable limit. The Commissioner held that the respondent was entitled to the refund under the notification.

The Revenue contended that the trade understanding that glass sheets within the thickness range of 1.8mm to 2.2mm are labeled as 2.0mm was misleading, questioning the necessity for misrepresenting the thickness in the sale invoices. The respondent's counsel supported the Order-in-Appeal, highlighting the authority of Bureau of Indian Standards in setting tolerance limits, which were not disputed by the Revenue. The respondent argued for the dismissal of the appeal.

Upon reviewing the contentions, the Tribunal found that the description in the tax invoice for resale clearly indicated the sale of 2.0mm mirror, aligning with the size mentioned in the Bill of Entry. The Tribunal noted that the term "IMP" in the invoices signified imported goods. Additionally, the Tribunal observed that the difference in the description of the imported glass as 1.8mm and the sold glass as 2.0mm did not materially affect the transaction. Consequently, the Tribunal upheld the decision of the Commissioner (Appeals), dismissing the appeal by the Revenue and directing the adjudicating authority to process the refund within 45 days along with applicable interest.

In conclusion, the judgment focused on reconciling the discrepancy in the description of imported goods and goods sold within the tolerance limits set by the Bureau of Indian Standards, ultimately affirming the respondent's eligibility for the refund under the notification.