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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 ..... 1.2 The said show cause notice has been adjudicated by the Additional Commissioner, Customs House Kandla vide Order-In- Original No. KDL/ADDL/SS/676/REM/214 dated 04.06.2014 whereby the demand for recovery of refund of Rs. 39,38,867/- was confirmed, demanded the interest under Section 28AB and imposed penalty of equal amount of Rs. 39,38,867/- under Section 114 A of Customs Act, 1962 and also ordered for appropriation of Rs. 50,00,000/- which was deposited during investigation. Being aggrieved by the said Order-In- Original the appellant filed appeal before the Commissioner (Appeals) who vide Order-In- Appeal No. KLD-CUSTM-000-APP-477-14-15 dated 27.02.2015 rejected the appeal 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 sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lterations in the actual sale invoice. a. Description of Timber b. Endorsement on the invoice that credit of SAD is not available c. Endorsement in respect of bill of entry number on the invoice d. Number of pieces. 2.4 He submits that the imported timber has been sold on payment of VAT, therefore alteration in respect of Serial No. a to d of above is immaterial to the refund claim. The VAT payable was made on the sale price at which logs were sold. He submits that even if some alteration was made i.e. due to the sale of sawn timber from timber logs, there was no malafide intention. He takes support of Hon'ble Apex Court Judgment in the case of Parminder Kaur vs. State of UP reported at AIR 2010 SC 840 wherein it was held that 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant is not imported goods but some different goods. Therefore, so long the same imported goods have been sold due to minor difference in the details will not jeopardise the substantial benefit of the refund to the appellant. 4.1 The main condition for granting the refund is that the importer should pay the VAT/sales tax which is not under dispute. Therefore, the SAD paid in lieu of sales tax has to be refunded. The main reason for difference of description is as stated above 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 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 als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el.) 3.3 He further raised the issue of limitation by pointing out that the show cause notice has been issued on 02.07.2012 while the refunds were sanctioned during the period 17.06.2008 to 10.06.2009. He pointed out that the demand is clearly barred by limitation. 4. Learned Authorized Representative relies on the impugned order. 5. We have considered rival submission. We find that the primary objection raised in the instant case is that the appellant have sold timber after cutting and sawing. This issue is specifically covered by the decision of Hon'ble Apex Court in the case of Variety Lumbers reported at 2018 (360) ELT 790 wherein following has been observed: "We have heard the Learned Counsels for appellant-Revenue. The issue turns on an interpretation of the Notification 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Processing Centre Pvt. Ltd. 2014 (299) ELT 263 (Guj.) therefore the ground that refund is not admissible if the imported logs are sold as cut and sawn wood is rejected. 6. The next ground raised by Revenue relates to non-endorsement of the declaration in terms of para 2(b) of Notification 102/2007-Cus dated 14.09.2007. The said para 2(b) requires the importer to mention on the invoices 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. Learned counsel has pointed out that they are not registered dealer or manufacturer and therefore, the question of taking credit on any invoices issued by them does not arise. Moreover, he has also relied on the decision in the case of Equinox Solution Ltd. 2011 (273) ELT 310 (Tribunal) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods in the sales invoices when compared to the Bills of Entry. On perusal of the documents placed before us, we find that in page-20 the sales invoice describes the goods as "ENABLE 3505HH (LDPE)", whereas in the Bills of Entry the product is described as "ENABLE 3505HH (LLDPE)". In pages 50-74, the appellant has produced the Chartered Accountant's Certificate along with the reconciliation statement. The Chartered Accountant has verified the accounts and stated that the appellants are eligible for the refund in respect of SAD paid by them. The correlation sheet is also enclosed along with the Chartered Accountant's Certificate to show the description of the goods in the Bills of Entry and the VAT paid for the goods as evidenced by the sales invoices. The appellant has sufficiently proved and fulfilled the requirements 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 im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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