Custom, Excise & Service Tax Tribunal
M/S. Infinity Industries Pvt. Ltd vs Commissioner Of Customs (Import), ... on 19 April, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
C/40517 to 40527 and 40534/2015
[Arising out of Order-in-Appeal No.C.Cus.No.222 to 233/2014,dated21.11.2014 passed by the Commissioner of Customs (Appeals-II), Chennai]
M/s. INFINITY INDUSTRIES PVT. LTD.
APPELLANT
Versus
COMMISSIONER OF CUSTOMS (IMPORT), CHENNAI-IV
RESPONDENT
Appearance:
For the Appellant None For the Respondent Shri B. Balamurugan, AC (AR) CORAM:
Honble Shri D.N. Panda, Judicial Member Date of hearing/decision 19-04-2016 FINAL ORDER NOs.40653-40664/2016. None present for the appellant.
2. One of the ground for denial of the refund is that appropriate endorsement was not in the invoice as to non-availment of Cenvat credit in respect of the goods covered by such invoice.
3. Larger Bench of the Tribunal has already held in the case of Chowgule & Co. Pvt. Ltd. Vs Commissioner of Customs reported in 2014 (306) E.L.T.326 (Tri.-LB) that such an endorsement may not be necessary since the invoices do not carry the duty element. This is apparent from para 5.2 of the order, which is reproduced below:-
Therefore, non-declaration of the duty in the invoice issued itself is an affirmation that no credit would be available. Therefore, non-declaration/non-specification of the duty element as to its nature and quantum in the invoice issued would itself be a satisfaction of the condition prescribed under clause (b) of para 2 of the Notification No.102/2007.
4. Learned departmental representative further says that there was some discrepancy both in bill of entry and the sales invoices. That causes anxiety to Revenue as to whether the goods imported were actually sold or not to get the refund of Additional Duty of Customs. He is correct to say that such a discrepancy is to be reconciled. There is no difference to his proposition. The appellant shall cause appearance before the learned Adjudicating Authority making an application for fixing the date of hearing by end of May, 2016 for reconciling the issue wherever there are discrepancies.
5. It is also the submission of the learned departmental representative that the appellate authority below has pointed out that the certificate of the Chartered Accountant was erroneous, for which, the Adjudicating Authority has to give a finding as to whether the appellant has been unjustly enriched.
6. So far as the no declaration of allowance of Cenvat credit of the duty paid is concerned, the appellant gets relief on that count. But, in the case of discrepancy between the bill of entry and the sales invoice, reconciliation has to be carried out. So far as the unjust enrichment is concerned, the Adjudicating Authority shall take care of that examination. To carry out the aforesaid exercise, the appellant has to make an application to the Adjudicating Authority by the end of May, 2016 for fixation of the date of hearing during 2016. On the date fixed, without taking adjournment, the appellant shall provide relevant evidence for reconciliation and testing of the unjust enrichment issue. Upon examination and granting reasonable opportunity of hearing to the appellant, the authority shall pass appropriate order by end of July, 2016. With the aforesaid direction all the appeals are disposed allowing on certain points and remanding on certain points as directed aforesaid. In the result, appeals are partly allowed and partly remanded.
7. Learned departmental representative points that at page 6 of the appellate order, dated 21.11.2014 learned Commissioner (Appeals) has recorded that Appeal No.C3.II/3/R/2014-Sea is against the Order in Original No.27197/14 dated 02.07.2014 but the appellant has already preferred appeal for the same Order in Original which was registered under appeal No.C3/952/R/2014. Hence the appeal No.C3.II/3/R/2014-Sea has become infructuous and the same is closed but appellant has again filed an appeal for the self-same cause before the Tribunal.
8. Learned Adjudicating authority shall go through the observation and direction of the learned Commissioner (Appeals)at page 6 of his order dated 21.11.2014 which is under challenge in this batch of appeal before Tribunal. It is made clear that there cannot be two appeals for the self-same cause and only one appeal shall be considered for such cause without making a duplicate claim of refund, by two appeals for same period. Learned Adjudicating Authority shall bring this aspect to the notice of the appellant for reconciliation of the difference between the two and deal the propriety of the matter.
(Dictated and pronounced in open court) (D.N. PANDA) JUDICIAL MEMBER ksr 22-04-2016 DRAFT Remarks I II III Date of dictation 19.04.2016 Draft Order - Date of typing 22.04.2016 Fair Order Typing 22.04.2016 Date of number and date of dispatch 25/04/2016 2 C/40517 to 40527 and 40534/2015