Custom, Excise & Service Tax Tribunal
M/S. Fresenius Medical Care India Pvt. ... vs Commissioner Of Customs, Chennai-Iv on 28 September, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
C/COD/40683/2015 and C/41694/2015
[Arising out of Order-in-Appeal No.C.Cus.II No.429/2015, dated 24.04.2015 passed by the Commissioner of Customs (Appeals-II), Chennai]
M/s. FRESENIUS MEDICAL CARE INDIA PVT. LTD.
APPELLANT
Versus
COMMISSIONER OF CUSTOMS, CHENNAI-IV
RESPONDENT
Appearance:
For the Appellant Shri Tushal Gupta, Adv.
For the Respondent Shri B. Balamurugan, AC (AR) CORAM:
Honble Shri D.N. Panda, Judicial Member Date of hearing/decision 28-09-2015 FINAL ORDER NO. 41293 / 2015 The delay of two days in filing the appeal is condoned for no unreasonable cause stated in the application. COD application is accordingly allowed.
2. The precise question in this appeal is whether the invoices issued by the appellant without endorsement therein that the sale made thereby do not allow the claim of Cenvat credit in respect of Special Additional Duty of Customs (ACD) paid shall entitle refund of the duty paid by the appellant.
3. Learned counsel submits that endorsement is merely a technicality and without endorsement also refund of Special Addiditional Duty of Customs is permissible as per Larger Bench decision of Tribunal in the case of Chowgule & Company Pvt. Ltd. Vs Commissioner of Customs & Central Excise reported in 2014 (306) E.L.T. 326 (Tri.-LB).
4. Revenue submits that the Larger Bench says that the decision in the case of Chowgule & Company Pvt. Ltd. (supra) rendered in that case has specific application to the concerned case, which is appreciable from para 5.4 of the decision. In other words, the Larger Bench has rendered facts based decision on the given facts of the case before that Bench. That does not lay down the law that condition of exemption notification need not be required to be fulfilled to avail the exemption granted by the relevant notification. Notification being body of the statute, the requirement thereof cannot be dispensed with by a forum which is creature of statute. Therefore, the appellants plea for endorsement is mere technicality and not relevant for the purpose of claim of Additional Duty of Customs in absence of declaration on the invoice is inconceivable. The learned Commissioner (Appeals) has recorded properly that requirement of law cannot be given go bye. Appellant may therefore, be directed to provide the list of invoices issued without declaration so that necessary enquiry shall be done with the cooperating to Revenue.
5. Heard both sides and perused the records. Only upon satisfaction by Revenue conducting enquiry as to no Cenvat credit was claimed by the buyer, the appellant is entitled to claim refund thereof. It may be stated that Revenues interest cannot be jeopardized on the plea of technicality because Revenue should be indemnified in the case of undue claim of Cenvat credit by the buyer of goods through non-endorsed invoices.
6. Revenue is correct to say that breach of notification condition disentitles to the grant of the notification. The ruling of Larger Bench is also in the same direction. Assessee got relief in that case for peculiar circumstances. Therefore, all cases can be equated with each other. A fact based case decision is a binding precedent for the concerned case only. But that does not operate as a general Rule. There is a statutory bar that Additional Duty of Customs paid on the goods sold does not entitle the buyer to the Cenvat credit of the duty so paid. Revenue to enquire with the cooperation of the assessee as to whether due to no endorsement over invoices whether the buyers had claimed Cenvat credit of Additional Duty of Customs paid.
5. In the result, the matter is remanded to the Adjudicating authority to conduct enquiry on the non-endorsed invoices and after affording reasonable opportunity of hearing shall pass appropriate order.
(Dictated and pronounced in open court) (D.N. PANDA) JUDICIAL MEMBER ksr 03-10-2015 DRAFT Remarks I II III Date of dictation 28.09.2015 Draft Order - Date of typing 29.09.2015 Fair Order Typing 03.09.2015 Date of number and date of dispatch 3 C/COD/40683/2015 and C/41694/2015