2015 (10) TMI 1721

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..... ssioner is not empowered to do – However, merely because respondent took credit of SAD does not ipso facto amounts of passing it on to its buyers and deprive it from claiming refund thereof if conditions contained in Notification No.102/2007-Cus are satisfied – In light of analysis court remand case to Commissioner to decide it afresh at his level and determine amount of refund admissible – Decided partly in favour of revenue.
Hon'ble Mr. R. K. Singh, Technical Member And Hon'ble Ms. Sulekha Beevi C.S., Judicial Member, JJ. For the Appellant : Shri Rajeev Tandon, A.R. For the Respondent : Shri Sudeep Singh with Shri Jatin Mahajan, Advocates ORDER Per R.K. Singh: This appeal was filed by Revenue against the Order-in-Appeal dated 28. .....

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..... eals) has come to the finding that declaration to the effect that credit of additional duty of customs is not available is given on the invoices and that benefit of SAD was not passed on only on scrutiny of sample invoices, and that the very fact that credit of SAD was taken in RG 23D register disqualified the respondent for the refund thereof. It also contended that the Commissioner (Appeals) in effect has remanded the case to the lower adjudicating authority while the power of remand by the Commissioner (Appeals) was taken away with effect from 11.5.2001 by amendment to the Section 128A of the Customs Act, 1962. 5. Ld. Advocate for the respondent on the other hand stated that Superintendent s letter stating that it had passed on the bene .....

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..... its buyers and deprive it from claiming refund thereof if the conditions contained in Notification No.102/2007-Cus are satisfied. We note that the Commissioner (Appeals) has recorded a finding that on the basis of sample invoice it is clear that the respondent issued invoices which contained a declaration which fulfilled the requirement of the related condition of Notification 102/2007-Cus. Revenue contends that such observation should have been recorded only after due scrutiny of all the relevant invoices. We find this contention valid, as specially in the case of refund, it is necessary to scrutinize all the relevant records. 7. In the light of the above analysis we remand the case to the Commissioner (Appeals) to decide it afresh at hi .....

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