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TMI Blog2016 (12) TMI 1367X X X X Extracts X X X X X X X X Extracts X X X X ..... forward in the appeal filed in the Tribunal. As the appellants were denied a show-cause notice, I am of the view that this contention raised at appellate stage is acceptable - In obedience to judicial discipline following the dictum laid in the case of M/s. Variety Lumbers Pvt. Ltd.[2013 (11) TMI 1013 - GUJARAT HIGH COURT], I find that the appellants are eligible for refund. The denial of refund is unjustified - Decided in favor of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... sold the entire consignments imported without passing the burden of 4% SAD to the buyers as certified by the Chartered Accountant and is therefore entitled to the refund as per the refund applications. He further submitted that there is no logical reasoning to accept that all the details of packing list given in the Bills of Entry at the time of importation should necessarily tally without any variation with the data given in the sales invoices in regard to sale of imported goods. That 1:1 correlation of number of logs sold as shown in the packing list is not possible at times, since the long size logs are required to be cut into smaller sizes depending on the capacity of the available truck to facilitate their easy transportation. In such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or what is the basis for arriving at the conclusion that these tally and the details for which refund is rejected (does not tally) is not clear. It is not stated whether the goods/logs for which refund was denied did not tally in their variety, shape, dimension, color or any markings, numbering etc. It is simply stated that some logs do not tally with packing list. It is not disputed by department that the quantity imported has been sold as per the sales invoices produced by the appellant in regard to the refund claim. The order does not specifically state that the dimensions of the logs shown in the packing list and the dimensions of the logs shown in the sales invoices do not tally and therefore the refund is denied. The only reason given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal filed in the Tribunal. As the appellants were denied a show-cause notice, I am of the view that this contention raised at appellate stage is acceptable. Similar issue when logs were cut to facilitate transportation was considered by the Tribunal in the case of Gayatri Timber Pvt. Ltd. (supra). The Tribunal in the said case relied upon the judgment passed by Hon'ble High Court of Gujarat in the case of Variety Lumbers Pvt. Ltd. (supra) and held the issue in favour of assessee. 6. In view of the above and following the said decisions, I hold that appellants are eligible for refund. The impugned orders rejecting the refund are set aside. The appeals are allowed with consequential reliefs, if any. ( Pronounced and dictated in open cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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