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TMI Blog2015 (10) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... 02/2007-Cus., dated 14-9-2007 for 4% SAD of Customs Duty amounting to Rs. 4,40,504/- against 9 bills of entry. Refund was rejected by the original authority on the ground that the original sale invoices were not submitted and the invoices so issued do not bear the declaration regarding non-admissibility of Cenvat credit by the buyers. The appellant filed appeal before the ld. Commissioner (Appeals), who has upheld order of the original authority, therefore the appellant is before me. 2. Shri. Prasad Paranjape, ld. Counsel for the appellant submits that the appellant is importer and they sale the goods in retail to individual consumer by issuing computer generated retail invoice. He further submits that the appellant has submitted soft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if any of the condition of the notification is not complied with. In the present case the refund was rightly rejected as Condition No. 2(b) and 2(e)(ii) have not been fulfilled by the appellant. 4. I have carefully considered the submissions made by both the sides. 5. The dispute involved is admissibility of the refund of SAD under Notification No. 102/2007-Cus. The lower authority rejected the refund claim on the following two grounds : (1) The appellant has not submitted original invoices. (2) The sale invoice does not bear endorsement of non-admissibility of Cenvat credit to the buyer. As regard non-submission of original invoices the appellant has admittedly submitted the so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he original invoices and the refund claim should not have been rejected on this ground. It is also observed that the importer is selling imported goods in retail from the retail show room to individual customer and from various cities and showrooms. Therefore, it is obvious that the entire invoices are practically not possible to be produced. This is very reason, the Board has given the option to submit the invoice in soft copy. As regard the issue that the appellant has not made endorsement of Cenvat credit on their sale invoices, it is fact that the appellant is neither registered dealer under Central Excise for passing on Cenvat credit nor the goods is Cenvatable items. The purpose of such endorsement is with an objective that there shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er or a registered dealer. Inasmuch as the appellant is not a registered dealer, the question of taking credit on the strength of invoices issued by him does not arise at all. Further, the invoices do not indicate the amount of SAD paid. In the absence of such a detail, the question of availing Cenvat credit also does not arise. Thus, the object and purpose of the declaration is achieved in the present case. The appellant has paid SAD at the time of importation and they also paid Sales Tax/VAT while selling these goods and therefore, the appellant is rightly entitled for the benefit of refund under the aforesaid Notification subject to the bar of unjust enrichment. It is a settled position in law that, substantive benefit of an exemption no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms (Import), Mumbai - 2011 (272) E.L.T. 310 and Commissioner of Customs, Bangalore v. Kohler India Corporation Pvt. Ltd. - 2012-TIOL-182-CESTAT-BANG. In the present case also since the goods are cars, on which Cenvat is not available and the dealers through whom the goods are sold are also not dealers registered for Cenvat credit purposes, the question of the buyers availing any Cenvat credit would not arise at all. Therefore, non-endorsement of non-availability of SAD does not materially affect the refund claims. (3) RKG International Pvt. Ltd. v. CCE & Cus., Noida - 2013 (290) E.L.T. 253 (Tri.-Del.) 4. We find that appellants have taken a categorical s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the supplier on the goods shown in the invoice and the buyer is entitled to take the credit of the same. As pointed out by the Hon'ble Apex Court in Malwa Industries (supra) the exemption Notification should be read liberally. In this case, compliance of Condition 2(b) of the said Notification is not required of the clearance on commercial invoice. Following the ratio laid down by the Apex Court, I find the purpose of issuing the Notification is that the importer should not suffer SAD on the goods imported by them which have been imported for the purpose of resale and the proper ST/CSTA/VAT has been paid. SAD is to be paid by the importers as precaution measure to ascertain whether ST/CST/ VAT has been discharged by the assessee or not. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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