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TMI Blog2018 (11) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... nt - Held that:- In the Chartered Accountant’s Certificate produced by the Appellant it has been clearly stated that the amount claimed as refund has been shown in their books of account as receivable and the same has not been passed on to the buyers - No contrary evidence has been produced by the Revenue to contradict the said certificate nor the findings of the Ld. Commissioner(Appeals) has been rebutted with material particulars. Refund is to be allowed - Appeal dismissed - decided against Revenue. - Appeal No. C/86781,86784 & 86782/2018 - A/87109-87111/2018 - Dated:- 17-8-2018 - Dr. D.M. Misra, Member (Judicial) Shri Ramesh Kumar, Asstt. Commr. (A.R.) for Revenue Shri Mohit Rawat, C.A. for respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-section (5) of Section 3 of the Customs Tariff Act, 1975 shall be admissible . Further, the Ld. AR for the Revenue submitted that the respondent has failed to furnish any certificate with conclusive evidence that the burden of 4% Special Additional Duty claimed as refund has not been passed on to their customers. In support, he has referred to the judgment of the Hon ble Gujarat High Court in the case of Proflex Systems Vs. Commissioner of Customs 2017 (353) ELT 142 (Guj.). 4. Per contra, Ld. Advocate for the respondent has submitted that the issue of alleged non-compliance with the condition of the notification for not mentioning in the sales invoices that Cenvat credit on the amount of 4% SAD paid at the time of import is not avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was shown as receivable in their books of account, therefore, they have not passed the incidence of 4% SAD claimed as refund by them. Also he has submitted that there is no dispute of the fact that the respondent had discharged VAT/ST on sale of the imported goods. 5. Heard both sides and perused the records. 6. I find that the Revenue is in appeal against the impugned order on the ground that non-mentioning of the fact of ineligibility of 4% SAD in the respective sales invoices, claimed as refund by the respondent, has violated the conditions of Notification No.102/2007-CUS dt. 14.9.2007. I find that the issue is settled in favour of the respondent by the Larger Bench in Chowgule Company Pvt. Ltd. case (supra). The Tribunal had o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iability on subsequent sale, and who issued commercial invoices without indicating any details of the duty paid, would be entitled to the benefit of exemption under Notification 102/2007-Cus, notwithstanding the fact that he made no endorsement that credit of duty is not admissible on the commercial invoices, subject to the satisfaction of the other conditions stipulated therein. The above decision is rendered only in the facts of the case before us and shall not be interpreted to mean that conditions of an exemption notification are not required to be fulfilled for availing the exemption. 7. Further the said judgment has been approved by the Hon ble Madras High Court in the case of PNP Polytex Pvt. Ltd. case (supra). Also, the Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X
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