Custom, Excise & Service Tax Tribunal
M/S Lodha Healthy Construction And vs Cc, Ce & St, Hyderabad-I on 20 July, 2017
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH AT HYDERABAD Bench SMB Court I Appeal No. C/30388/2017 (Arising out of Order-in-Appeal No. HYD-CUS-000-APP-126-16-17 dt. 12.01.2017 passed by CC & CE (Appeals), Hyderabad) M/s Lodha Healthy Construction and Developers Pvt Ltd., ..Appellant(s) Vs. CC, CE & ST, Hyderabad-I ..Respondent(s)
3Appearance Sh. Timish Salot, Chartered Accountant for the Appellant. Sh. M. Chandra Bose, Additional Joint Commissioner (AR) for the Respondent.
Coram:
Honble Mr. M.V. Ravindran, Member (Judicial) Date of Hearing: 11.07.2017 Date of Decision: _________ FINAL ORDER No._______________________ [Order per: M.V. Ravindran]
1. This appeal is directed against Order-in-Appeal No. HYD-CUS-000-APP-126-16-17 dated 12.01.2017.
2. Heard both sides and perused the records.
3. The issue that falls for consideration in this case is whether the appellant is entitled for the refund of SAD paid on the sanitary wares imported by them in terms of Notification No. 102/2007-Cus dated 14.09.2007 as amended. It is the case of the appellant that they have sold the sanitary wares as is, after affixing in the various flats/premises to their customers by way of an agreement which included the cost of these sanitary wares, while it is the case of the Revenue is that the appellant has not paid VAT on the sanitary claimed as sold, hence not eligible to get the benefit of the refund of the amount of SAD paid by them.
4. Ld. Chartered Accountant brings to my notice that identical issue of the very same assessee was in appeal before this Bench in Appeal No. C/30907/2016 which was disposed of by the Bench by Final Order No. 30378/2017 dated 07.03.2017 and produces a copy of the same.
5. On perusal of the said decision as reproduced by the Ld. Chartered Account, I find it so. Since an identical issue has been decided by the Bench in favour of this appellant, there is no reason for me to deviate from such a view already taken. The ratio of the decision of the Tribunal in the appellants own case, in paragraph 5 which is reproduced below:
5. I have heard both sides. The main objection raised by the Department is that there is no evidence for sale of the imported goods for the reason that the imported goods are fixed in the bathroom of the apartments sold by the appellant. That there being no invoice, the condition in Notification No.102/2007 is not fulfilled and therefore the refund cannot be allowed. Undisputedly the appellants are providing construction of residential buildings and thereby engaged in execution of works contract services. Under the State VAT law, the appellants are discharging their VAT liability under composite scheme by paying 5% of the agreement value as provided in Section 4(7)(d) of State VAT Act. Appellants have furnished copies of the agreement of sale of apartments which show that the value of apartment is arrived at after including the value of imported sanitary items fixed in the bathrooms. VAT has been paid @ 5% of the agreement value under composite scheme. The apartment is sold to customers along with the sanitary fittings and appellant has paid VAT on the material part of the Works Contract Services. The appellant is incapacitated from issuing invoices as per the provisions of composite scheme in VAT Act. While complying with one legislation, the appellant cannot be disadvantaged of the benefit which is otherwise available to them by another legislation. Thus rejecting the refund claim only on the grounds that appellants have not produced invoices to substantiate sale of the imported goods would be putting the appellant to disadvantage merely because they have complied the VAT law. As per the circular No.6/2008-Cus. dt. 28/04/2008, in para 5.1, the Board has clarified that the certificate issued by an Auditor / Chartered Accountant who is also a person who certifies the Annual Statements of the company can issue a certificate for correlating the VAT as well as the SAD paid. The appellant has produced such a certificate. In the present case, the non-issuisance of invoices was not a choice made by the appellant. It was a compulsion while opting for payment of composite scheme under VAT law. The second condition is that the appellant has not established that CENVAT credit has not been taken by the appellant by producing the endorsement on the invoices. Since the appellants have not issued any invoices, there is no question of making of such endorsements. The discussion made above would apply to this requirement also. In view thereof, I find that the appellants have fulfilled the conditions to the extend of practically possible and therefore the rejection of refund claim is unjustified. The impugned order rejecting the refund claim is set aside. Appeal is allowed with consequential reliefs, if any.
6. In view of the foregoing, I find that the impugned order is unsustainable and liable to be set aside and I do so. The impugned order is set aside and the appeal is allowed.
(Order pronounced on ____________ in open court) (M.V. RAVINDRAN) MEMBER (JUDICIAL) Jaya.
A.No. C/30388/2017 3 A.No. 1