2024 (2) TMI 1144 - AT - Customs

Denial of refund of SAD - goods supplied under sales invoice not contain rubber stamp and not computer printed - non-submission of the Chartered Accountant s certificate - whether the burden of 4% SAD has been passed on by the importer or not - mandatory declaration required under Condition 2(b) of Notification No. 102/2007-Cus - HELD THAT - The allegation that the stamping was not done in the invoices issued to the buyer has been examined by the Larger Bench of the Tribunal in the case of Chowgule Company Pvt. Ltd. Vs. Commissioner of Customs 2014 (8) TMI 214 - CESTAT MUMBAI (LB) wherein it was has held in that case that non-declaration of duty in the invoice issued to the buyer itself is an affirmation that no credit would be available. Appellant has obtained the Chartered Accountant s certificate and has submitted it before the Commissioner (Appeals). The Commissioner (Appeals) has held that non-submission of the Chartered Accountant s certificate before the original authority is not a curable defect and has rejected the claim. Board vide instruction circular issued from F.No. 275/34/2006- CX.8A, has stated that Commissioner (Appeals) while deciding the appeals filed before him u/s 128A of the Customs Act, 1962, shall, after making such further enquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against. He can direct the production of any document, or the examination of any witness to enable him dispose of the appeal. In the circumstances it was not proper of him to have rejected the appeal without examining it on merits and after issuing a proper speaking order. Thus, it is proper to remand the matter back to the Original Authority who shall consider the Chartered Accountant s certificate apart from the other documents already submitted by the Appellant at the time of filing the refund claim. He should also verify the invoices to check that they don t indicate the payment of SAD. If so he shall accept the same in affirmation that no credit would be available, in line with the judgment of the Larger Bench in Chowgule Company (supra). All other issues are left open. He shall point out discrepancies in writing, if any to the appellant and afford a reasonable opportunity of hearing to them for advancing their claim. The impugned order is set aside on the above terms and the appeal is disposed of accordingly.

Summary

Issues Involved:
The judgment involves issues related to the rejection of a refund claim by the Commissioner of Customs (Appeals) due to non-compliance with conditions under Notification No. 102/2007-Cus, specifically regarding the stamping on sales invoices and the submission of a Chartered Accountant's certificate.

Issue 1 - Stamping on Sales Invoices:
The appellant filed a refund claim for 4% Additional Duty of Customs but the department found deficiencies in the sales invoices, specifically the absence of the mandatory rubber stamp as per Condition 2(b) of Notification No. 102/2007-Cus. The department concluded that the stamping on the invoices was an afterthought, indicating malafide intent. The appellant argued that the absence of stamping should not lead to rejection of the refund claim, citing relevant case laws. The Tribunal held that non-declaration of duty in the invoice itself affirms that no credit would be available, creating a rebuttable presumption that the buyer could not avail the credit of the duty.

Issue 2 - Chartered Accountant's Certificate:
The appellant failed to submit a detailed Chartered Accountant's certificate explaining whether the burden of 4% Special Additional Duty (SAD) was passed on to the consumer. The Commissioner (Appeals) rejected the claim on the grounds of non-submission of this certificate before the original authority. The Tribunal found that the Commissioner should have examined the appeal on merits and issued a proper speaking order. In the interest of justice, the matter was remanded back to the Original Authority to consider the Chartered Accountant's certificate and verify the invoices for SAD payment indication, allowing the appellant a reasonable opportunity to advance their claim.

Separate Judgement:
A separate judgement was not delivered by the judges in this case.