Custom, Excise & Service Tax Tribunal
M/S Orange Overseas (P) Ltd vs C.C.E. New Delhi (Air Cargo Export) on 5 June, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Customs Appeal No. C/50819/2015 -Cu[SM]
[Arising out of Order-In-Original No. CC(A)CUS/1090/2014 issued under C. No. APPL/DLH/CUS/D-1/EXP/84/14 dated 15.12.2014 passed by Commissioner (Appeals) New Delhi]
For approval and signature:
Hon'ble Mr. S.K. Mohanty, Member (Judicial)
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 Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
M/s Orange Overseas (P) Ltd. ...Appellant
Vs.
C.C.E. New Delhi (Air cargo Export) Respondent
Appearance:
Ms. Vibha Narang, Advocate for the Appellants Mr. G R Singh, DR for the Respondent CORAM:
Hon'ble Mr. S.K. Mohanty, Member (Judicial) Date of Hearing.05.06.2015 FINAL ORDER NO. 53784 /2015 Per S. K. Mohanty:
This appeal is directed against the impugned order dated 15.12.2014 passed by the Commissioner (Appeals) Central Excise & Customs, New Delhi, wherein refund application filed by the appellant, claiming refund of Special Additional Duty (SAD), in terms of Notification No. 102/07-CUS dated 14.09.2007 has been denied on the ground that the conditions provided therein, read with CBEC Circular No. 06/2008 Cus., dated 28.04.2008 and No. 16/2008 Cus., dated 13.10.2008 have not been complied with by the appellant, in as much as, the description of imported goods indicated in the Bills of Entry are not the same as shown in the sales invoice.
2. Ms. Vibha Narang, the ld. Advocate appearing for the appellant submits that the conditions prescribed in the Notification No. 102/2007-Cus., dated 14.09.2007 have been duly complied with by the appellant for claiming the refund of SAD amount. Ld. Advocate further submits that all the required documents were produced before the refund sanctioning authority, which clearly depict that the imported goods were sold in the domestic market on which appropriate VAT/sales tax amount have been collected from the buyer and deposited with the Government exchequer. According to the Ld. Advocate, since the conditions itemized in the Notification as well as in the Circular issued by CBEC have been duly complied with in entirety, the refund benefit cannot be denied on the ground that there is slight mis-match of description of goods in the bill of entry vis-a-vis the invoices. According to the Ld. Advocate, though the description of goods have been mentioned in the bills of entry elaborately, but in the common trade parlance, the description indicated in the domestic invoices clearly show that the goods imported have actually been sold to the customers in the domestic market. To support her stand that refund claim cannot be denied in case of slight difference in the description of the goods, the Ld. Advocate relies on the decision of this Tribunal in the case of Commissioner of Customs (Sea Export), Chennai vs Shri Ram Impex India (P) Ltd. reported in 2014 (300) ELT 126 (Tri. Chennai).
3. Per contra, Shri G R Singh, the ld. DR appearing for the Revenue reiterates the findings recorded in the impugned order and submits that the onus lies with the appellant to prove that the incidence of SAD amount borne by the appellant has not been satisfactorily discharged.
4. I have heard the Ld. Counsel for both sides and perused the records.
5. I find from the impugned order that the ld. Commissioner (Appeals) has categorically observed that the conditions of above referred notifications have been duly complied with by the appellant. However, the appeal has been rejected by him on the sole ground that there is mis-match between the description of goods indicated in the Bills of Entry and the sales invoices issued by the appellant. On perusal of the documents available on records, I find that as per the requirement of Customs statute, complete description of imported goods were provided for calculating/arriving at the assessable value. On the other hand, as per the trade practice and for the purposes of easy identification of the said goods for selling to the local traders, the description of the goods was mentioned in the short form as fabric cloth. On perusal of the retail invoices available in file, I find that the appellant had mentioned therein the reference of the Bills of Entry evidencing importation of the disputed goods on payment of SAD amount; that the said invoices also bore the declaration that no credit of the Additional Duty of Customs (SAD) levied under the Customs Tariff Act shall be available to the buyer of goods; that Central Sales Tax payable on sale of the disputed goods have been clearly mentioned in the said invoices. Thus, it is evident from the retail invoices that the goods imported on payment of SAD amount have been sold in the domestic market by the appellant.
6. Since, the conditions laid down in the above referred notification and circulars for claiming the refund have been duly complied with by the appellant, in my considered opinion, the mere change in the description of the goods in the domestic invoice which may be due to various reasons, cannot be a defensible ground to deny the benefit of refund to which the appellant is legally entitled to. In this context, I find support from the decision of this Tribunal in the case of Shriram Impex (supra) wherein in an identical set of fact, the appeal filed by the Revenue has been rejected by holding that refund benefit cannot be denied if the requirement of the notification read with the circular of CBEC have been duly complied with.
7. In view of above, I do not find any merits in the impugned order passed by the Commissioner (Appeals), and thus, the same is set aside and the appeal is allowed in favour of the appellant.
(Dictated and pronounced in open court) (S.K. Mohanty) Member(Judicial) Neha Page | 1