Custom, Excise & Service Tax Tribunal
M/S. Adore Fontech Ltd vs Commissioner Of Customs on 9 March, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
C/42053/2015
[Arising out of Order-in-Appeal No.187/2015,dated27.02.2015 passed by the Commissioner of Customs (Appeals), Chennai]
M/s. ADORE FONTECH LTD.
APPELLANT
Versus
COMMISSIONER OF CUSTOMS
(PORT-EXPORT), CHENNAI
RESPONDENT
Appearance:
For the Appellant Shri S. Janakiraman, Adv.
For the Respondent Shri K. Veerabhadra Reddy, JC (AR) CORAM:
Honble Shri D.N. Panda, Judicial Member Date of hearing/decision 09-03-2016 FINAL ORDER NO. 40437 / 2016 Learned counsel says that the authority below could have examined the substance of the transaction without the format being examined. The sales were made to ultimate buyers sending the goods to the respective places of sale making the challans and invoices describing name of buyer and self. He further says that the sales consideration in respect of such sales have also been received and respective tax element has been deposited. All such aspects are also verifiable from record and genuineness of the transaction cannot be doubted. Sales made in the state of Karnataka has suffered VAT thereat. Wherever interstate transaction has been made, CST has been paid. All such taxpayments vouch bona fide of the appellant who has deposited sales tax in respect of sale ofthe imported goods sold through the respective bill of entries.
2. Revenue on the other hand says that because of the fiction of self raised in the invoices by the appellant in respect of sales, that created doubt in the minds of the appellate authority. Therefore, refund was denied.
3. Heard both sides and perused the records.
4. Revenue drew attention to paras 5 to 7 of the Adjudication order. Perusal of those paragraphs does not throw light as to the application of the mind by the Adjudicating Authority. He has not understood the implication of the word self mentioned in the invoices. Once self is mentioned it may be a case that sale has not been effected. These are contract of future sale at the respective place of sale. Therefore, the authoritybelow should fist examine whether property in the goods was transferred and right title over the same was passed on to the buyer. If so, he has to ascertainat what point of time and at which place such transfer has occured. Once such ingredient of the Sale of Goods Act, 1930 is complied with, in that circumstance, sales can be said to have been effected. Otherwise it is a mere case of stock transfer in the guise of sale. If the authority is satisfied that sale has been effected and appropriate VAT/sales tax thereon has been paid into the Treasury, the appellant cannot be denied refund of Additional Duty of Customs suffered on the imports.
5. To make the aforesaid exercise, the matter is remanded to the Adjudicating Authority, who shall not be simply guided by the Chartered Accountants Certificate since such certificate is not conclusive evidence of sale as has been held by the Honble Madras High Court in the case of Commissioner of Customs (Exports), Chennai Vs BPL Ltd. reported in 2010 (259) E.L.T. 526 (Mad.). Therefore, the authority should make in depth examination of the transactions testing that from origin to termination thereof in order to ensure compliance to the law to claim the refund.
6. In the result, appeal is disposed remanding the matter to the Adjudicating Authority in the manner indicted above. Appellant is entitled to reasonable opportunity of hearing. (Dictated and pronounced in open court) (D.N. PANDA) JUDICIAL MEMBER ksr 09-03-2016 DRAFT Remarks I II III Date of dictation 09.03.2016 Draft Order - Date of typing 09.03.2016 Fair Order Typing 09.03.2016 Date of number and date of dispatch 10.03.2016 4 C/42053/2015