2024 (8) TMI 104 - AT - Customs

Refund of SAD - rejection only on the ground that there is no specific declaration on the invoice with respect to the condition mentioned at para 2(b) of N/N. 102/2007 - principles of unjust enrichment - HELD THAT - The Jurisdictional customs officer i.e., the Adjudicating Authority observed that the declaration on the invoice reads as Note-No Cenvat Credit is admissible instead of specifically indicating in the invoice that in respect of the goods covered therein, 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 , therefore rejected the refund claim. It is found that the declaration made by the appellant on the sale invoice though is not as per the phrase used in the Notification it conveys the purpose of such required declaration. Hence rejection of refund claim on this ground is not sustainable. It is found that in the impugned order it is held that; the appellants have failed to comply with stipulated requirements of the notification which stipulates that the importer shall specifically indicate in the sales invoices regarding non-admissibility of cenvat credit; the Chartered Accountant s Certificate does not rule out the aspect of unjust enrichment. It is found that the declaration of the appellant on the sales invoices would suffice the requirement at Para 2(b) of N/N. 102/2007-Cus dated 14.09.2007 as regards the declaration of non-admissibility of Cenvat credit. Further, the Chartered Accountant s Certificate clearly mentions that the burden of 4% of additional duty is not being passed on to the buyer or any other person. Further, as regards the sales invoices being raised prior to the Out of Charge the submissions of the appellant are tenable in the circumstances of the case. The refund claim needs to be allowed - Appeal allowed.

Summary

Issues:
Refund claim rejection based on non-compliance with Notification No. 102/2007-Cus conditions.

Detailed Analysis:
The appellant imported "ECRM MAKO NEWSMATIC 250 (Fully Automatic) CTP PLATESETTERS" and paid Additional Duty (SAD). The refund claim was rejected for not complying with Para 2(b) of Notification No. 102/2007-Cus. The Adjudicating Authority held that the importer failed to indicate non-admissibility of Cenvat credit in the sale invoices before the "Out of Charge" date. The Commissioner (Appeals) upheld this decision, emphasizing the lack of specific declaration in the invoices and the Chartered Accountant Certificate's failure to rule out unjust enrichment.

Appellant's Arguments:
The appellant contended compliance with all conditions, asserting a rubber stamp declaration on invoices, ensuring no Cenvat credit admissibility. They argued that the buyer, a publishing house, cannot avail credit under CENVAT Rules. Citing legal precedents, the appellant defended their position.

Judicial Review:
The Tribunal reviewed the case, focusing on Notification No. 102/2007-Cus requirements. While the Adjudicating Authority accepted the Chartered Accountant's Certificate on unjust enrichment, the refund claim was rejected solely for lack of a specific declaration in the invoices. The Tribunal found the appellant's declaration sufficient, even if not exact as per the Notification's wording. The Chartered Accountant's Certificate also clarified the non-passing of the duty burden to buyers, supporting the appellant's position.

Conclusion:
The Tribunal deemed the appellant's sales invoice declaration satisfactory for Notification compliance. The Chartered Accountant's Certificate adequately addressed unjust enrichment concerns. Considering the circumstances and legal principles, the Tribunal allowed the appeal, directing the refund claim's approval. The decision was pronounced on 30.07.2024.