2022 (10) TMI 965 - AT - Customs

Refund of SAD - Endorsement on the Invoice - stamp required as per Para 2(b) of Notification No. 102/2007 is not endorsed - whether the direction for remand by the Commissioner (Appeals) to verify and reprocess the refund claim is legal and proper? - HELD THAT - It is the case of the department that when two invoices were called for by the review cell, such invoices did not bear the endorsement as required under para 2(b) of Notification. It is pointed out by the learned counsel for the appellant that the original authority after examining the invoices has made a finding that there are endorsements on the sales invoices which indicated not eligible for CENVAT credit . It is also noted by the original authority that the condition in para 2(b) has been fulfilled. The Larger Bench of the Tribunal in the case of CHOWGULE COMPANY PVT LTD VERSUS COMMISSIONER OF CUSTOMS CENTRAL EXCISE 2014 (8) TMI 214 - CESTAT MUMBAI (LB) has held that failure of the importer to endorse on the sales invoices that no credit of such additional customs duty would be admissible to buyers as stipulated under condition 2(b) of Notification cannot be a ground to deny the refund. Even though it is alleged by the department that two sales invoices did not bear the required endorsement, it is not established whether these invoices verified by Review Cell are the original invoices issued to the buyer by the appellant. So also there is no evidence to establish that the buyer had availed credit on these alleged invoices. There are no merits in the grounds alleged for remand of the matter. The order passed by Commissioner (Appeals) requires to be set aside - the order passed by the original authority sanctioning the refund is restored - appeal allowed.

Summary

Issues:
Refund claim for 4% additional duty paid on imported goods; Allegation of missing endorsement on two sales invoices; Legality and propriety of direction for remand by Commissioner (Appeals).

Analysis:
1. The appellant filed a refund claim for 4% additional duty paid on imported goods. The original authority sanctioned the refund, but the department appealed, alleging missing endorsements on two sales invoices as required by Notification No. 102/2007.

2. The appellant's counsel argued that all invoices contained the necessary endorsement stating the buyer's ineligibility for CENVAT credit on the Special Additional Duty. Reference was made to a Tribunal decision where the absence of such endorsement did not warrant refund rejection. The counsel urged to set aside the Commissioner (Appeals) order and restore the original authority's decision.

3. The department's representative supported the remand decision, stating that two sample invoices lacked the required endorsement, justifying the need to verify all invoices. The matter was remanded for proper examination, which was deemed legal and appropriate.

4. The Tribunal considered whether the remand direction was lawful. The appellant contended that the original authority confirmed the endorsements on invoices, fulfilling the condition in para 2(b). Citing a Tribunal precedent, it was argued that missing endorsements should not lead to refund denial. Lack of proof that the reviewed invoices were original or that buyers availed credit further weakened the department's case.

5. After evaluating the arguments and the Tribunal's precedent, the Tribunal concluded that the Commissioner (Appeals) order should be set aside. The original authority's decision to grant the refund was reinstated, and the appeal was allowed with any necessary consequential relief.

6. In summary, the Tribunal found no merit in the grounds for remand based on missing endorsements. Following the Tribunal's precedent and the lack of evidence supporting the department's claims, the Commissioner (Appeals) order was overturned in favor of the appellant, restoring the original authority's decision on the refund claim.