Custom, Excise & Service Tax Tribunal
Commissioner Of Customs vs M/S Millipore India Ltd on 18 June, 2012
IN THE ,CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, FKCCI COMPLEX, K.G. ROAD,
BANGALORE 56009.
DATE OF HEARING : 18/6/2012
DATE OF DECISION : 18/6/2012
Stay Application No. 207/2011
Customs Appeal No. 354 of 2011
Cross Objection No. 94/2011
(Arising out of the Order-in-Appeal No. 104/2010 dated 12.5.2010, passed by the Commissioner of Customs (Appeals), Bangalore)
For approval and signature:
Honble Shri P. G. Chacko, Member (Judicial)
Honble Shri M. Veeraiyan, Member (Technical)
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ? Yes
3. Whether Their Lordships wish to see the fair copy of the Order? Seen
4. Whether Order is to be circulated to the Departmental authorities? Yes
Commissioner of Customs, Appellant
Bangalore.
Versus
M/s Millipore India Ltd. Respondent
Appearance Mr. M.M. Ravi Rajendran, Deputy Commissioner (AR) for appellant Mr. Mr. J.S. Bhanu Murthy, Consultant for respondent CORAM : Honble Shri P. G. Chacko, Member (Judicial) Honble Shri M. Veeraiyan, Member (Technical) ORDER No..Dated 18/6/2012 [Order per : P. G. Chacko] : This application filed by the department (appellant) seeks stay of operation of the impugned order whereby the learned Commissioner (Appeals) held in favour of the assessee (respondent) on a set of refund claims filed by them claiming refund of Special Additional Duty (SAD) paid on the goods imported by them during the period October 2007 to March 2008. On a perusal of the records and hearing both sides, we are of the view that the appeal itself requires to be finally disposed of at this stage. Pre-deposit waived.
2. The original authority had rejected the following refund claims on the ground of non-compliance with the conditions attached to Notification No. 102/2007-Cus dated 14.9.2007 as amended :
Sl.
No. Application date Date of receipt Period of claims Amount claimed File No.
1. 30.9.08 11.12.08 Oct 07 316849 S.46/D-174/08
2. 28.10.08 11.12.08 Nov 07 488531 S.46/D-175/08
3. 01.01.08 02.01.08 Jan 08 226466 S.46/D-10/09
4. 31.01.08 31.01.08 Feb 08 490305 S.46/D-52/09
5. 26.02.09 03.03.09 Mar 08 573949 S.46/D-101/09 Total 2096100 The said notification had exempted the goods imported into India for subsequent sale, from the whole of the additional duty leviable thereof under sub-section (5) of Section 3 of the Customs Tariff Act, 1975 (referred to as SAD) subject to the following conditions :
2. 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 gods with the jurisdictional customs officer before the expiry of one year from the date of payment of the said additional duty of customs;
(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 importer, on sale of such imported goods. The notification clearly mandated that a claim of refund of SAD paid on the imported goods shall be sanctioned upon compliance with the above conditions by the claimant. It appears, the original authority required the party to produce the following documents :
(i) TR-6 challans, evidencing payment of SAD
(ii) Invoices of sale of the imported goods, in respect of which refund was claimed.
(iii) documents evidencing payment of appropriate sale tax, such as copies of sales tax returns duly acknowledged by the sales tax authorities.
All these documents were not produced by the party, who produced only copies of the relevant Bills of Entry and the relevant TR-6 challans. The party, however, produced a certificate from their Chartered Accountant, wherein it was certified that all the goods imported by them had been sold in India within a period of one year from the date of import and that appropriate VAT/Sales Tax had been paid on such sales in India. The adjudicating authority did not accept this certificate of the Chartered Accountant as conclusive evidence of due compliance with the relevant conditions of the notification. It was also found that all the invoices covering sales of the imported goods were not produced by the party. In the circumstances, the refund claims came to be rejected. Aggrieved, the party preferred an appeal to the Commissioner (Appeals) and the latter accepted the Chartered Accountants certificate and set aside the order-in-original by holding that the party was eligible for refund of SAD paid on the imported goods. Hence the present appeal of the department.
3. The respondent has filed their counter styled as cross objections, which is seen registered as cross objection No. 94/2011. The learned consultant for the respondent has reiterated the so-called cross objections.
4. The learned Deputy Commissioner (AR) has reiterated the grounds of this appeal. According to the appellant, the respondent did not duly comply with the conditions of notification No. 102/2007-Cus inasmuch as they did not produce all the invoices covering sales of the imported goods within one year from the date of import. Ground (c) of this appeal provides a gist of the departments challenge against the appellate Commissioners order and we reproduce this ground below :
(c) The conditions laid down in the Notification, viz. endorsing invoices, proof of payment of tax and Chartered Accountants certificate are just instruments to ensure that the importer/claimant is not unjustly enriched by the refund.
On a careful examination of the records filed by the respondent with their cross objections, we find that, barring a specimen copy of sale invoice, the relevant invoices covering sales of all the imported goods within the prescribed time limit have not been produced by the respondent even at this stage. The Chartered Accountants certificate (copy produced by the respondent) is apparently based on his examination of books and records maintained by the company in the normal course of business, the self declaration given by the company and other relevant records of the company as appropriate. There is no mention, in this certificate, of any of the sale invoices. The identity of other relevant records of the company is not discernible from this certificate. This certificate does not even specify the particulars of the imported goods so as to establish a correlation. There are many more short-comings to be found in this document, which we need not elaborate at present. Suffice it to say that the appellant is fully justified in contending that the learned Commissioner (Appeals) erred in relying on the Chartered Accountants certificate. The appellant has rightly contended that the respondent did not comply with one of the conditions of the exemption notification inasmuch as they did not prove that all the imported goods were sold within the prescribed period under invoices containing endorsement of inadmissibility of CENVAT credit of SAD to the buyers. The impugned order is, therefore, liable to be set aside and this appeal to be allowed. However, for the ends of justice, we are of the view that the respondent should be given a reasonable opportunity of adducing requisite evidence in support of their refund claims before the original authority. The learned consultant has today submitted that, if they are given an opportunity, they will produce sufficient evidence before the said authority. We are inclined to consider this submission for the ends of justice.
5. In the aforesaid circumstances, we set aside the impugned order and allow this appeal by way of remand with a request to the original authority to decide afresh on the refund claims filed by the assessee after giving them a reasonable opportunity of adducing evidence of compliance with conditions of the exemption notification, and also of being personally heard.
6. The appeal stands disposed of as above. The cross objections filed by the respondent are also disposed of for the record. The stay petition also stands disposed of. .
(Pronounced and dictated in the open court)
(M. Veeraiyan) (P. G. Chacko)
Member (Technical) Member (Judicial)
/vc/