2022 (5) TMI 1108 - AT - Customs

Refund of SAD - only ground for rejection of refund given by the adjudicating authority is that the amount of SAD paid by the appellant by way of debiting in MEIS scrip and that no declaration was found on the sale invoice regarding non admissibility of cenvat credit of SAD - HELD THAT - The issue that whether the refund is admissible when an assessee paid the SAD by debiting MEIS has been settled in the judgment of ALLEN DIESELS INDIA PVT. LTD. VERSUS UNION OF INDIA ORS. 2016 (2) TMI 247 - DELHI HIGH COURT where it is clear that even if the assessee does not pay the SAD amount in cash but the same is debited in any incentive scrip, in the aforesaid case the same was debited from DEPB, the refund of SAD cannot be denied - The same analogy is applicable in the present case as the amount of SAD was debited in MEIS scrip. Therefore, the issue is clearly covered by the afore said judgment. As regard the issue that whether for not making the declaration of invoice as required in para 2(b) of Notification No. 102/2007-Cus the refund is admissible or otherwise, the Larger Bench judgment of this tribunal in the case of CHOWGULE COMPANY PVT LTD VERSUS COMMISSIONER OF CUSTOMS CENTRAL EXCISE 2014 (8) TMI 214 - CESTAT MUMBAI (LB) has dealt with the same issue where it was held that even if no declaration is made for that reason the refund cannot be denied - The aforesaid judgments on both the issue were placed before the commissioner (Appeals). However, despite refering the said judgments, the matter was once again remanded to the adjudicating authority which was absolutely not warranted on the part of the Commissioner (Appeals). Learned Commissioner (Appeals) should have decided finally as there was nothing left for the adjudicating authority to decide further. The appellant is clearly entitled for the refund - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
Refund claim for Additional Duty of Customs @ 4% - Rejection based on payment method and lack of declaration on invoice.

Analysis:
1. Payment Method Issue:
The appellant filed a refund claim for Additional Duty of Customs paid at the time of import under Notification No. 102/2007-Cus. The Sanctioning Authority contended that since the duty was paid by debiting in their MEIS scrip, the refund was not maintainable. The Adjudicating Authority rejected the claim based on Circular No. 18/2013-Customs. The appellant cited judgments like ALLEN DIESELS INDIA PVT. LTD. and argued that payment method does not affect refund eligibility. The Tribunal referred to legal precedents stating that circulars cannot impose additional restrictions beyond statutory notifications. The Tribunal held that the appellant is entitled to the refund as the payment method does not disqualify them under the relevant notification.

2. Lack of Declaration Issue:
The Adjudicating Authority also rejected the refund claim due to the absence of a specific declaration on the sale invoice regarding the non-admissibility of cenvat credit of SAD. The appellant referenced the judgment in CHOWGULE & COMPANY PVT. LTD. where it was clarified that non-declaration on the invoice does not automatically disqualify the refund. The Tribunal reiterated the legal position that procedural conditions like declarations should not override substantive entitlements under notifications. Therefore, the lack of a declaration on the invoice does not bar the appellant from receiving the refund.

In conclusion, the Tribunal found in favor of the appellant, setting aside the impugned order and allowing the appeal. The Commissioner (Appeals) was criticized for remanding the matter unnecessarily when the legal issues were already settled by relevant judgments. The Tribunal emphasized that the appellant met the conditions for refund entitlement, as clarified by legal precedents, and directed the authorities to grant the refund accordingly.