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TMI Blog2019 (5) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... filed. This requirement becomes more relevant if the person claiming the refund as per this notification is importer and the claimant of the CENVAT Credit is the person to whom the goods have been sold - In present case the buyer of goods himself is claiming the refund of SAD paid by the person ex-bonding the goods on payment of applicable Customs duty. In his order Commissioner (Appeal) has satisfied himself that no CENVAT Credit has been claimed in respect of the SAD paid - from the order of Commissioner (Appeal) it is evident that he has not absolutely allowed the refund application made but has allowed it subject to the condition of verification of fact of non availment of the CENVAT Credit from the jurisdictional Central Excise Officers. In our view by building this safeguard Commissioner (Appeal) has ensured substantial compliance with the condition specified at 2(b) of the Notification No 102/2007-Cus. Second objection raised by the revenue in their appeal, is with regards to the respondent filing the refund claim, they being not importer - HELD THAT:- In the present case it is not disputed that the burden of the Custom duties as applicable and paid and that of the sales tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd by M/s Vijai Marine Services. ii. Condition (b) of the Notification is not satisfied as the invoice dated 15.03.2011 issued by M/s Vijai Marine Services and submitted along with refund application does not specifically indicate that "no credit of additional duty of Customs levied under Sub Section (5) of Section 3 of the Customs Tariff Act, 1975 shall be admissible" iii. Condition (c) of the Notification is not satisfied as the refund claim has been filed by person other than the importer. 2.4 The show cause notice was adjudicated rejecting the refund claim by the Assistant Commissioner as per the order referred in para 1.2 supra. 2.5 Aggrieved by the order of Assistant Commissioner, respondents preferred and appeal before Commissioner (Appeal) which was allowed as per the order in appeal referred in para 1, supra. 2.6 Aggrieved revenue has filed this appeal. 3.1 In their appeal, revenue has challenged the order of Commissioner (Appeal) stating that- i. As per para 2(c) of the Notification No 102/2007-Cus dated 14.09.2007 (as amended) the refund claim could have been filed only by the importer. Since the claimant in present case is not the importer, the refund c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e importer of the said goods shall pay all duties, including the said additional duty of customs leviable thereon, as applicable, at the time of importation of the goods; b) the importer, while issuing the invoice for sale of the said goods, shall specifically indicate 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; c) the importer shall file a claim for refund of the said additional duty of customs paid on the imported goods with the jurisdictional customs officer; d) the importer shall pay on sale of the said goods, appropriate sales tax or value added tax, as the case may be; e) the importer shall, inter alia, provide copies of the following documents along with the refund claim : i. document evidencing payment of the said additional duty; ii. invoices of sale of the imported goods in respect of which refund of the said additional duty is claimed; iii. documents evidencing payment of appropriate sales tax or value added tax, as the case may be, by the importer, on sale of such imported goods. 3. The jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arance of the said Barge for Home Consumption vide Bill of Entry No 06/03.03.2011 could be verified from the jurisdictional Central Excise Authorities. This is only a deficiency and would not disentitle the Appellant to get refund." 5.5 Thus from the order of Commissioner (Appeal) it is evident that he has not absolutely allowed the refund application made but has allowed it subject to the condition of verification of fact of non availment of the CENVAT Credit from the jurisdictional Central Excise Officers. In our view by building this safeguard Commissioner (Appeal) has ensured substantial compliance with the condition specified at 2(b) of the Notification No 102/2007-Cus. 5.6 Second objection raised by the revenue in their appeal, is with regards to the respondent filing the refund claim, they being not importer. Revenue has relied on condition 2(c) of the said notification for raising this objection. The word importer used in the Notification No 102/2007-Cus needs to be interpreted in terms of the said notification, and by reading the notification as whole. In terms of * 2(a) importer of the goods shall pay all duties; * 2(c) importer shall file a claim for refund; an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only to enable the Government to retain the illegally collected taxes. It is suggested that the creation of the Consumer Welfare Fund is a mere pretence and not an honest exercise. By reading the Rules framed under Section 12D, it is pointed out, even a consumer, who has really borne the burden of tax and is in a position to establish that fact, is yet not entitled to apply for refund of the duty since the Rules do not provide for such a situation. The Rules contemplate only grants being made to Consumer Welfare Societies. Even in the matter of making grants, it is submitted, the Rules are so framed as to make it highly difficult for any consumer organisation to get the grant. There is no provision in the Act, Sri Nariman submitted, to locate the person really entitled to refund and to make over the money to him. "We expect a sensitive Government not to bluff but to hand back the amounts to those entitled thereto", intoned Sri Nariman. It is a colourable device - declaimed Sri Sorabjee - "a dirty trick" and "a shabby thing". The reply of Sri Parasaran to this criticism runes thus : it ill-becomes the manufacturers/assessees to espouse the cause of consumers, when all the while the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emoval" or "clearance" of the said goods but the sale may have taken place elsewhere; if the purchaser wants to apply for refund - it is submitted - he has to go to the place where the duty has been paid by the manufacturer and apply there. It is also pointed out that purchasers may be spread all over India and it is not convenient or practicable for all of them to go to the place of "removal" of goods and apply for refund. True it is that there is this practical inconvenience but it must also be remembered that such claim will be filed only by purchasers of high priced goods where the duty component is large and not by all and sundry/small purchasers. This practical inconvenience or hardship, as it is called, cannot be a ground for holding that the provisions introduced by the 1991 (Amendment) Act are a "device" or a "ruse" to retain the taxes collected illegally and to invalidate them on that ground - assuming that such an argument is permissible in the case of a taxing enactment made by Parliament. (See R.K. Garg and other decisions cited in Paras 78 and 79)." 5.8 In view of above we do not find any infirmity in the orders of Commissioner (Appeals). 6.1 Appeal filed by the r ..... 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