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TMI Blog2019 (12) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015, 41798 of 2015 ORDER The issue for consideration in these appeals being similar they are taken up together and disposed by this common order. 2. Appellants had filed refund claim under Notification No.102/2007-Cus. dt. 14.09.2007 for refund of the SAD paid on the goods imported by them. After due process of law, the original authority rejected the claim on various grounds which was also upheld by the commissioner (Appeals) in some of the appeals. Aggrieved by the rejection of refund claims, the appellants are now before the Tribunal. 3. Ld. counsel Shri M. Baskar appeared and argued for the appellant. He submitted that the reasons for rejection of refund claim in these appeals by the authorities below are under four grounds : (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e given by the Chartered Accountant is factually incorrect and therefore not acceptable. He adverted to the Board circular No.401/104/2007-Cus.III dt. 28.04.2008 and submitted that as per para 2(b) of the notification, a certificate has to be produced by the appellant from the statutory auditor who has certified after looking into the accounts of the appellants that payment of VAT correlates with the imported goods. The department does not have a case that there is no correlation with the VAT paid on sale invoices and SAD paid under Bills of Entry. Since condition of endorsement has not been fulfilled and since the Chartered Accountant has stated in his certificate that the condition of such endorsement has been fulfilled, the certificate i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the notification, Ld. A.R submitted that the sales invoices should show that VAT was paid. In the discussions made by the authorities below, it is not clear whether any duty element was there in the sales invoices. Therefore, it cannot be concluded that para 2(b) of the notification has been complied. Thus, with the available facts, it cannot be decided whether the ratio of the Tribunal's Larger Bench decision in Chowgule & Company Pvt. Ltd. (supra) is applicable to the facts of this case. 5.3 With regard to the ground of rejection that the Chartered Accountant Certificate is not acceptable, Ld.A.R submitted that the Commissioner (Appeals) has stated in the certificate that the appellant has complied that para-2(b) of the notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods. In Chowgule & Company (supra) the very same issue was analysed by the Larger Bench of the Tribunal which held as under : "5.4 In view of the factual and legal analysis as above, we answer the reference made to us as follows. A trader-importer, who paid SAD on the imported .good and who discharged VAT/ST liability 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside, which I hereby do. 10. The last issue is with regard to mismatch of the description of the goods in sales invoices and the Bills of Entry. The refund has been rejected on this ground in Appeals C/40305/2015, C/40306/2015 and C/40733/2015. In para-6 of OIO dt. 4.7.2014, the discussion with regard to mismatch has been made by the original authority. It is seen that description of goods in the Bill of Entry is "LASU GLOSS ART PAPER AND BOARD C2S 58.5*91 GSM 118", the description of the goods mentioned in the sales invoices as "118LU 23 x 36 C2S GLS". Similarly, the mismatch of the description of the goods under OIO 6.8.2014 is as under : Sl.No. Claim/File No B/E No. B/E Date Description in the Bill of Entry Description in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods in the Bill of Entry and the sale invoices. The Tribunal in the case of Hanuman Timber Co. Vs CC (Port-Export) Chennai - 2017 (358) ELT 771 (Tri-Chennai) relied upon by Ld.A.R had rejected the refund holding that there is no major mismatch of the goods. In the said case, the import was of timber logs and whereas in the sale invoices the goods were described as "face veneer". The goods are entirely different and therefore it is not the case of minor mismatch for which reason the Tribunal has rejected the refund. The said decision is therefore distinguished on facts. On appreciating the facts of the present case, as well as following the decision of the Hon'ble High Court in the case of PP Products (supra) as well as Orange Overse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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