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TMI Blog2024 (4) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute. Therefore, the SAD paid in lieu of sales tax has to be refunded. The main reason for difference of description is that the timber logs imported have undergone the process of sawing and sawn timber was sold. This issue has been raised against various importers of timber logs and in some of the cases the Tribunal has held that merely because the timber log is converted into sawn timber and the same has been sold, the benefit of the N/N. 102/2007-Cus cannot be denied. As regard other discrepancies raised by the department, the difference in description and certain other details does not prove that the goods sold by the appellant on which Notification No. 102/2007 was availed is not for the imported goods but for some other goods. Therefore, due to minor difference of details between the invoice and bills of entry is at the most merely a procedure lapse which does affect the vital facts that the SAD was paid by the importer and against sale of the said goods the appellant has discharged the VAT/sales tax, therefore, there is no concrete reason for denial of the refund. Extended period of Limitation - HELD THAT:- Admittedly the show cause notice has been issued after one year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and upheld the order of the Adjudicating Authority. Being aggrieved by the said impugned order, the present appeal filed by the appellant. 2. Shri Manish Jain, Learned Counsel along with Ms. Shruti Khanna, Advocate appearing on behalf of the Appellant submits that the ground and for denial of Notification No. 102/2007-Cus and recovery for the sanctioned refund is that the appellant have purchased the wooden logs but they have sold the said goods after processing i.e. in sawn sized. As per the department since the imported goods were not sold as such the refund is not admissible. In this regard, he submits that this issue is no longer res-integra as in various judgments it has been settled that even if the imported goods is sold after processing particularly in the case of timber log in the form of sawn timber, the benefit of Notification No. 102/2007-Cus cannot be denied. He placed reliance on the following judgments:- Variety Lumbers - 2018 (360) ELT 790 (SC) Hanuman Timber Company - 2016 (12) TMI 1367 CESTAT Hyderabad CC vs. Posco India Delhi Steel Processing Centre Pvt Ltd - 2014 (299) ELT 263 (Guj.) Santosh Timber Trading Company Ltd- Final Order No. A/10385-10386/2024 dated 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t not every interpolation or tempering with a document amounts to a forgery. He also placed reliance on the CESTAT decision in the case of Rahul Bhandari vs. Commissioner of Customs (import) Mumbai - 2012 (285) ELT 225 (Tri.- Mum). 2.5 Without prejudice to the above, he further submits that the demand is not maintainable since the adjudication order granting refund has not been challenged by the department by filing an appeal before the Commissioner (Appeals). Therefore, the sanctioned order of the refund attained finality. He placed reliance on the following judgments :- Priya Blue Industries Pvt Ltd vs. Commissioner 2004 (272) ELT 145 (SC) Wipro Ltd vs. C.C Chennai 2005 (189)ELT 289 (T) C.C., Mumbai vs. Hindustan Gas Industries - 2006 (202) ELT 693 (T). 2.6 He further submits that Notification No. 102/2007-Cus does not provide any machinery for recovery of the erroneous refund, penalty and interest. He also submits that the demand is barred by limitation as the show cause notice has been issued on 31.03.2011 i.e. after period of more than one year from the date of actual refund by invoking the extended period of 5 years. It is submitted that the demand for the larger period can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same has been sold , the benefit of the Notification No. 102/2007-Cus cannot be denied. One of the latest decision of this Tribunal in the case of Santosh Timber Trading Company Ltd- Final Order No. A/10385-10386/2024 dated 06.02.2024 following order has been passed:- This appeal has been filed by Santosh Timber Trading Co. Limited against order seeking to recover the refund already sanctioned to the appellant. The appeal has also been filed by Shri Naresh Aggarwal, Director of the appellant company against imposition of penalty. 2. The undisputed facts are that the appellant had imported timber log and paid SAD on the same. The appellant had cut and sawed the timber logs and thereafter sold the same. In terms of Notification 102/2007, the appellants were granted the refund of SAD. Subsequently revenue raised a Show Cause Notice seeking to recover the refund already sanctioned as erroneous refund on the ground that the item imported was timber logs whereas the item sold by the appellant was saw logs. There was also some allegations of mismatch of description and procedural violations of Notification 102/2007-Cus. 3. Learned counsel has relied on the decision of Hon ble Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 14-9-2007 which contemplates refund of additional duty of Customs paid by the importer of goods under Section 3(5) of the Customs Tariff Act, 1975. The notification in the main part contemplates that the import must be for the purpose of subsequent sale and is inter alia subject to the condition that in the invoice issued in respect of the goods sold (said goods) it is mentioned that credit of the additional duty of Customs levied under sub-section (5) of Section 3 of the Customs Tariff Act, 1975 is not admissible. 2. The Learned Counsel for the appellant-Revenue has sought to dislodge the view taken by the Customs, Excise and Service Tax Appellate Tribunal and the High Court by contending that the subsequent sale must be in the same form in which the goods were received on import. The contention advanced on behalf of the appellantRevenue is not supported by a plain reading of the exemption notification which even if construed in the strictest terms does not permit such a view to be taken. That apart, the materials on record clearly shows that for purpose of transit of logs, the same necessarily had be reduced in size due to conditions imposed by the State for transport/move ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l) wherein following has been observed. 6. To deal the first issue, I find that as per the condition 2(b) of the Notification no. 102/07, the appellants are required to make endorsement on the invoice that the SAD has not been passed on to the buyer. The ld. advocate has contended that the assessee is to avail the credit on the strength of invoice issued under the provisions of Central Excise Law/Customs Law/Service Tax laws, as per the provisions of Rule 9 of the CENVAT Credit Rules, 2004. When there is no mention of passing on duty in the invoice, the buyer cannot take credit of the said duty (SAD) which is not mentioned in the invoice. I do agree with this contention of the ld. advocate when there is no duty mentioned in the invoice, buyer cannot take credit of the same. Although there is a condition in the Notification to claim refund i.e. to make endorsement on the invoice, it may be relevant for the invoices which are issued under the Central Excise Law/Customs Law/Service Tax law showing specifically the duty suffered by the supplier on the goods shown in the invoice and the buyer is entitled to take the credit of the same. As pointed out by the Hon ble Apex Court in Malwa I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts as per the Notification No. 102/2007-Cus., dated 14-11-2007. In the decision relied by the Learned Counsel for the appellant, the Hon ble High Court has held in favour of the appellant/importer. After perusal of the documents submitted by the appellant, we are of the considered opinion that the rejection of refund claim is without any legal or factual basis. The impugned order to the extent of rejecting the refund claim in respect of 4 Bills of Entry is set aside. The appeal is allowed with consequential reliefs, if any. Thus minor discrepancies cannot be the reason for recovery of refund when the appellant had submitted Chartered Accountant certified stock report. 8. In view of above, we do not filed any merit in the order, the same is set aside and appeals are allowed. The appeal of the Naresh Aggarwal, Director is also consequently allowed. 4.2 In the aforesaid decision which is absolutely on identical issue involved in the present case various judgment this Tribunal, High Courts and Supreme Court have been considered and it was conclusively held that merely because the timber log imported was not sold as such but the same was sold as sawn timber, benefit of the Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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