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TMI Blog2024 (8) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... customs levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible , therefore rejected the refund claim. It is found that the declaration made by the appellant on the sale invoice though is not as per the phrase used in the Notification it conveys the purpose of such required declaration. Hence rejection of refund claim on this ground is not sustainable. It is found that in the impugned order it is held that; the appellants have failed to comply with stipulated requirements of the notification which stipulates that the importer shall specifically indicate in the sales invoices regarding non-admissibility of cenvat credit; the Chartered Accountant s Certificate does not rule out the aspect of unjust enric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le invoices have been raised prior to the Out of Charge given for the goods i.e prior to 28.09.2011. 9. The CA Certificate submitted by the importer does not rule out the case of unjust enrichment comprehensively as required vide Annex.III to the notification no. 102/2007. 2. Aggrieved by said order, the appellant filed an appeal before the Commissioner (Appeals). Commissioner (Appeals) upheld the order of the Adjudication Authority holding that; the sales invoice furnished by the appellant was without specific declaration as stipulated in Para2(b) of the Notification No. 102/2007-Cus dated 14.09.2007; the sale invoices have been raised prior to the Out of Charge given for the goods i.e., prior to 28.09.2011; further the Chartered Accountan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd object thereof would be defeated thereby. Further the appellant relied on the following case laws; i. Equinox Solutions Vs. CC (2011 (271) ELT 310, CESTAT, Mumbai ii. Corporation Bank Vs. Saraswathy Abharanasala 2010 (18) STR 513 SC. 4. The appellant contended that the Commissioner (Appeals) has upheld the findings of the Original Authority in rejecting the refund claim on the ground that the sale invoices the issue prior to the date of Out of Charge i.e., 28.09.2011; the Bill of entry was filed on 26.09.2011 and duty was paid on the same day and hopeful of getting the goods on the same day, as the goods were to be supplied to the buyers directly after the clearance they have issued the invoices on the same day i.e., 26.09.2011. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Chartered Accountant s Certificate with regard to the unjust enrichment. However, he has rejected the refund claim only on the ground that there is no specific declaration on the invoice with respect to the condition mentioned at para 2(b) of Notification No. 102/2007. We find that the appellant has sold the imported goods to M/s. Bennet Coleman Company Ltd, Kochi, Kerala C/o. M/s. Mathrubhumi, Trivandrum, Kerala as per the invoice raised by the appellant to M/s. Bennet Coleman Company Ltd., has paid CST at 2% (C-Form). 8. Notification 102/2007-Cus dated 14.09.2007, clause -2 reads as under; 2. The exemption contained in this notification shall be given effect if the following conditions are fulfilled: (a) the importer of the said goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 3 of the Customs Tariff Act, 1975 shall be admissible , therefore rejected the refund claim. We find that the declaration made by the appellant on the sale invoice though is not as per the phrase used in the Notification it conveys the purpose of such required declaration. Hence rejection of refund claim on this ground is not sustainable. Further the appellant has also submitted the Chartered Accountant s certificate, which inter-alia mentions at para 6 as under: 6. For coming to such conclusion that the burden of 4% Additional Duty has not been passed on by the importer to the buyer or any other person and that the requirement to rule out unjust enrichment has been fulfilled, we further give the following explanation/justification / grou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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