Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Sea Export), ... vs Shri Ram Impex India (P) Ltd on 26 July, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
C/S/40298/2013 & C/EH/40856/2013 & C/40357/2013
(Arising out of Order-in-Appeal C. Cus. No.1516/2012 dated 18.12.2012 passed by the Commissioner of Customs (Appeals), Chennai)
For approval and signature:
Honble Shri P.K. Das, Judicial Member
Honble Shri Mathew John, Technical Member
1. Whether Press Reporters may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether the Members wish to see the fair copy of the Order?
4. Whether order is to be circulated to the Departmental authorities?
Commissioner of Customs (Sea Export), Chennai Appellant
Vs.
Shri Ram Impex India (P) Ltd. Respondent
Appearance Shri P. Arul, Superintendent (AR), for the Appellant Shri A. Mohamed Ismail, Advocate for the Respondent CORAM Honble Shri P.K. Das, Judicial Member Honble Shri Mathew John, Technical Member Date of Hearing: 26.07.2013 Date of Decision: 26.07.2013 Final Order No. 40385/2013 Per P.K. Das The stay application filed by the Revenue was taken up for hearing on 19.7.2013 and after considering the submissions of both sides and on perusal of records, we found that it is a fit case to decide the appeal itself. Accordingly, the appeal was fixed for hearing today. After disposing the stay application, we proceed to hear the appeal itself.
2. Revenue has filed this appeal against the order of the Commissioner (Appeals) whereby the Commissioner (Appeals) has upheld the adjudication order insofar as allowing the refund claim.
3. The facts of the case in brief are that the respondents imported Tin Plate plain or misprint sheets-waste, waste/secondary and filed refund claim of Rs.16,17,568/- of 4% of SAD in terms of Notification No. 102/2007-Cus. dated 14.9.2009 as amended. The original authority allowed the refund claim. Revenue preferred an appeal before the Commissioner (Appeals). By the impugned order, the Commissioner (Appeals) rejected the appeal filed by the Revenue. Hence the Revenue has come in appeal before this Tribunal.
4. The learned Authorized Representative on behalf of the Revenue reiterates the grounds of appeal. He submits that one of the conditions in Notification No. 102/2007-Cus. dated 14.9.2007 is that the respondents shall produce the sale invoice of imported goods in respect of which refund of the said additional duty is claimed. It is contended that the description of goods in sale invoice and Bill of Entry are not tallying. It is also contended that they have not mentioned the Bill of Entry number in the sale invoice for the purpose of correlation of the goods. He also produced sample of the sale invoices before the Bench.
5. On the other hand, the learned counsel drew the attention of the Bench the relevant portion of the Order-in-Appeal. He submits that there is no dispute that the sale invoice and the Bill of Entry are related to waste and rejected material. It is also submitted that there is no condition in the notification for mentioning the Bill of Entry number in the sale invoice. He submits that refund cannot be denied on such minor variations of the description of the goods in the documents.
6. After hearing both sides, we find that Notification No. 102/2007-Cus. dated 14.9.2007 allowed the exemption benefit of the goods imported for subsequent sale from the whole of additional duty of customs levied thereon. Para 2 of the said Notification reads as under:-
The exemption contained in this notification shall be given effect if the following conditions are fulfilled:-
(a) the importer of the said goods shall pay all duties, including the said additional duty of customs leviable thereon, as applicable, at the time of importation of the goods;
(b) the importer, while issuing the invoice for sale of the said goods, shall specifically indicate in the invoice that in respect of the goods covered therein, no credit of the additional duty of customs levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible;
(c) the importer shall file a claim for refund of the said additional duty of customs paid on the imported goods with the jurisdictional customs officer;
(d) the importer shall pay on sale of the said goods, appropriate sales tax or value added tax, as the case may be;
(e) the importer shall , inter alia, provide copies of the following documents along with the refund claim
(i) document evidencing payment of the said additional duty
(ii) invoices of sale of the imported goods in respect of which refund of the said additional duty is claimed
(iii) documents evidencing payment of appropriate sales tax or value added tax, as the case may be, by the importer, on sale of such imported goods.
7. On perusal of the adjudication order, we find that the original authority after examining the records and conditions of the notification as mentioned above, held that the refund is admissible and also sanctioned the same. In the grounds of appeal filed by the Revenue, it is stated that the imported goods is composite mixture of Prism, seconds / defects and waste and therefore there is difference between descriptions of the imported goods and the goods sold. It is also contested the authenticity of the Chartered Accountants certificate, payment of VAT/sales tax etc.
8. One of the conditions of the said notification is that the sale invoice of the imported goods in respect of which refund of the additional duty is claimed has to be produced. In the present case, the dispute relates to the variation of the description of the goods. It is revealed from the impugned order that vide Bill of Entry No. 532821 dated 7.6.2010, the goods were Tin Plate or Misprints, Sheets waste / secondary and rejected whereas in the sale invoice there is a description of Tin Sheet, W/W or Sheets or Tin plates defects. Similarly, the description in the Bill of Entry No. 534622 dated 9.6.2010 was Tin Plate Plain or Misprints Sheets Waste / Waste Secondary & Rejected but the sale invoice shows the description Tin Plate Misprints sheet or Tin Plate defective. On a query from the Bench, the learned counsel submits that Tin Sheet W/W indicates Tin Sheet Waste / Waste as mentioned in the Policy. It is apparent, on a plain reading of the description, that the Bill of Entry indicates waste / rejected and sale invoice showing waste and defects instead of rejected, which are similar in nature. In our considered view such a difference of the description rejected or defects cannot disentitle the benefit of exemption notification. The other contention of the learned AR that the respondents had not mentioned the Bill of Entry number in the sale invoice, we do not find any force in the submission. There is no condition in the Notification that the Bill of Entry number should be mentioned in the sale invoice.
9. In the grounds of appeal, the Revenue contests the authenticity and bonafide of CA certificate. It is seen from the adjudication order that Board Circular No.16/2008-Cus. clarifies that a Chartered Accountant is, one who either certifies the claimants financial records under the Companies Act, 1956 or any ST/VAT Act of the State Government or the Income Tax Act, 1961, in order to fulfill the condition that the incident of duty burden has not been passed on to any other person. We find that Chartered Accountants certificate was accepted by the adjudicating authority in terms of Board Circular, cannot be discarded without any material and/or basis. Revenue has not placed any material and therefore, there is no force in such grounds of appeal.
10. In view of the above discussion, we do not find any force in the appeal filed by the Revenue. Accordingly, the appeal filed by the Revenue is rejected. The order passed by the Commissioner (Appeals) is upheld.
11. The stay application and the early hearing application are also disposed of accordingly.
(Dictated and pronounced in open court)
(Mathew John) (P.K. Das)
Technical Member Judicial Member
Rex
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