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TMI Blog2024 (8) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... f such action the claim cannot be rejected. In CHOWGULE COMPANY PVT LTD VERSUS COMMISSIONER OF CUSTOMS CENTRAL EXCISE [ 2014 (8) TMI 214 - CESTAT MUMBAI (LB)] , a Larger Bench of this Tribunal examined a reference of a related matter as to whether to avail the benefit of Notification No. 102/2007, the condition 2(b) of the Notification is mandatory for compliance being a trader who cleared the goods on the strength of commercial invoices. The judgment went on to examine the genesis and object of the levy and the role of the exemption notification, which is very useful in understanding the issue - it was held in the case that ' non-declaration/ non-specification of the duty element as to its nature and quantum in the invoice issued would itself be a satisfaction of the condition prescribed under clause (b) of para 2 of the Notification 102/2007.' The Hon ble Madras High Court in its judgment in PP PRODUCTS LTD. VERSUS COMMISSIONER OF CUSTOMS, CHENNAI SEAPORT COMMISSIONERATE-IV [ 2019 (5) TMI 830 - MADRAS HIGH COURT] , examined whether the Tribunal, in the face of documentary evidence produced by the appellant, was correct in setting aside the order of the Appellate Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected the appeal, hence this present appeal. 3. The learned Shri B.N. Gururaj, Advocate appeared for the appellant and Smt. O.M. Reena, learned Authorized Representative appeared for the respondent. 3.1 The learned counsel for the appellant submitted that the four refund claims involved 51 bills of entry and several hundred sale invoices. Based on discrepancies found in some of the sale invoices, all the refund claims has been rejected. It was open to the authorities below to disallow the claim of refund against specific bill of entry or sale invoice and allow rest of the claims. Wholesale rejection of all the refund claims was unjustified and resulted in miscarriage of justice. He relied upon the following judgments to state that minor discrepancies or variation in description of the goods is not a valid ground for rejecting the refund claim under Notification No. 102/2007-Cus: a. PP Products Pvt Ltd v. CC, Chennai, 2019 (367) ELT 707 (Mad). b. Johnson Lifts Pvt Ltd v. Asst. Commr of Customs (Refunds), Chennai, 2020 (374) ELT 519 (Mad). c. Overseas Polymers Pvt Ltd v. CC (Appeals-II), Chennai, 2021 (378) ELT 231 (T-Chennai). d. Chakrapani Vyapar Pvt Ltd v. CC, Bangalore, 2019 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminating and reliable documents and the reasons for disbelieving the certificate should be clearly spelt out. In the absence of such action the claim cannot be rejected. 5. In Chowgule Company Pvt. Ltd. v. Commissioner of Customs C. Ex., [2014-TIOL-1191-CESTAT-MUM-LB], a Larger Bench of this Tribunal examined a reference of a related matter as to whether to avail the benefit of Notification No. 102/2007, the condition 2(b) of the Notification is mandatory for compliance being a trader who cleared the goods on the strength of commercial invoices. The judgment went on to examine the genesis and object of the levy and the role of the exemption notification, which is very useful in understanding the issue. The relevant portion of the Tribunals judgment is extracted below; 5.1 It would be useful and appropriate at this juncture to understand the genesis of the levy of Special Additional Duty of Customs (SAD). While moving the proposal for this levy in the Finance Bill, 1998, the Hon ble Finance Minister of India stated as follows in his Budget Speech : I am persuaded about a clear disability that our commodity taxation inflicts on the indigenous goods vis- -vis the imported goods. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d documents. However, for taking the CENVAT credit, under sub-rule (2) of the said Rule 9, following particulars are required to be indicated, namely, details of the duty or service tax payable, description of the goods or taxable service, assessable value, Central Excise or Service Tax registration number of the person issuing the invoice, name and address of the factory or warehouse or premises of first or second stage dealers or provider of taxable service, etc. For taking the credit, the quantum of duty paid should be shown in the invoices and the same should be shown separately for each type of duties. In respect of a commercial invoice, which shows no details of the duty paid, the question of taking of any credit would not arise at all. Therefore, non-declaration of the duty in the invoice issued itself is an affirmation that no credit would be available. Therefore, non-declaration/ non-specification of the duty element as to its nature and quantum in the invoice issued would itself be a satisfaction of the condition prescribed under clause (b) of para 2 of the Notification 102/2007. (emphasis added) A similar view is also relevant for discrepancies noticed in the description ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the local market. In our considered view, the adjudicating authority has not come to a conclusion that the product sold was entirely different. In fact, there was nothing on record to disbelieve the Chartered Accountant s certificate which certified that both products are one and the same. If the adjudicating authority had to disbelieve such certification, then there should have been material to do so. However, the larger question would be whether at all such jurisdiction is vested with the adjudicating authority, when there is no allegation of any fraud or misrepresentation against the appellant. 11. In our considered view, the Commissioner (Appeals-II), the first appellate authority was right in its observations/findings which are quoted hereinbelow :- . It is seen from the tabular column of discrepancy given in the Order-in-Original by the lower authority, only the grades of the granules are missing but the description HDPE and LDPE is found in both the documents. It is seen that the appellants have used the generic description of the imported goods in the sales invoices and non-mentioning of grade will not change the imported goods different. Hence, the goods imported and the g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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