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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 ..... mercial invoices for sale of the goods. In Chowgule Company [ 2014 (8) TMI 214 - CESTAT MUMBAI (LB) ] the very same issue was analysed by the Larger Bench of the Tribunal which held that A trader-importer, who paid SAD on the imported goods 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. - non-fulfilment of condition 2(b) cannot be a ground for rejecting the refund - rejection of refund set aside. Rejection of refund is that the Chartered Accountant certificate is flawed or incorrect and therefore not acceptable in evidence - HELD THAT:- There is no allegation raised by the department that these figures do not correlate. The only allegation with respect to Chartered Accountant certificate is that since he has stated that the sale invoices bear endorsement the same cannot be accepted - since condition 2 (e) to produce Chartered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) that invoices do not bear endorsement as required under condition 2(b) of notification No.102/2007. (ii) that the wordings used in the endorsement by the appellant does not correlate with the wordings of the endorsement as required under condition 2(b) of the notification. (iii) the Chartered Accountant certificate was not accepted by the authorities below alleging that it is factually incorrect. (iv) that the description of the goods in the Bills of Entry and the sale invoices do not match. 4.1 With regard to the first and second issue as stated above, Ld.counsel submitted that the appellant is an importer and trader and therefore has issued commercial invoices for sale of the goods imported. Not being a manufacturer, he has not issued any Central Excise invoice. He relies upon the decision of the Larger Bench in the case of Chowgule Company Pvt. Ltd. 2014 (306) ELT 326 (Tri.-LB) to argue that when the commercial invoices are issued by the trader-importer, the requirement under para 2(b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OL-302-CESTAT-DEL was also relied upon by the Ld. counsel on this issue. He prayed that the refund may be allowed. 5.1 Ld. A.R Ms. T. Usha Devi appeared and argued for the department. 5.2 With regard to the first and second issue that the sale invoices do not bear any endorsement or that wordings are not the same as given in para 2(b) 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 regarding the endorsement whereas this condition has not been fulfilled and therefore it cannot be concluded that cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejecting the refund. Rejection of refund on this ground is set aside. 9. The third ground for rejection of refund is that the Chartered Accountant certificate is flawed or incorrect and therefore not acceptable in evidence. In the last para of the OIA dt. 30.10.2014, the Commissioner (Appeals) has stated that since the Chartered Accountant has certified that the sale invoices are endorsed as per the condition 2(B) and since the sale invoices do not bear endorsement, the Chartered Accountant certificate is factually incorrect and therefore it cannot sustain. Moreover, as per the Board s circular, statutory auditor is required to issue certificate after correlating VAT and SAD paid by the assessee. There is no allegation raised by the department that these figures do not correlate. The only allegation with respect to Chartered Accountant certificate is that since he has stated that the sale invoices bear endorsement the same cannot be accepted. From the above discussions, I hold that since condition 2 (e) to produce Chartered Accountant certificate so as to correlate VAT and SAD paid has been furnished by the appellant, the rejection of refund claim on this count against the assessee ..... 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