Custom, Excise & Service Tax Tribunal
M/S K.R. Patel & Co vs Cc (Import) Mumbai on 4 August, 2014
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. C/685, 686, 687 & 688/11 (Arising out of Order-in-Appeal No. 149-152/MCH/AC/ICD/Mulund (I)/2011 dated 23.06.2011 passed by the Commissioner of Customs (Appeals) Mumbai Zone-I.) For approval and signature: Honble Shri Anil Choudhary, Member (Judicial) =====================================================
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M/s K.R. Patel & Co.
: Appellant
Versus
CC (Import) Mumbai
: Respondent
Appearance
Shri Prateush Sharma, Advocate
: For Appellants
Shri M.S. Reddy, Dy. Commissioner (A.R.)
: For Respondents
CORAM:
HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)
Date of Hearing : 04.08.2014 Date of Decision: 04.08.2014
ORDER NO.......................................................
Per: Anil Choudhary:
The appellant M/s K.R. Patel & Co. is an importer who have imported Timber logs and paid appropriate duty. The appellant has deposited Special Additional Duty @ 4% at the time of import, which is exempted by way of refund, on resale under sub-section (5) of Section 3 of the Customs Tariff Act, 1975 read with Notification No. 102/07-Cus. The further contention of the appellant is that they have filed refund claims in terms of the provisions of Notification No. 102/2007-Cus dated 14.09.2007, during the period March, 2003 to 8th March, 2008 of sold quantity.
2. The aforementioned refund claims were rejected by separate Order-in-Original and upheld by common Order-in-Appeal, mainly on two common grounds, which are as under:-
2.1 The importer/seller claiming refund is required to mention on the invoice by endorsement in the following words- 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 where as the appellant has mentioned on the invoice No credit of the additional duty of customs levied. As the endorsement was not found as per Boards Circular No. 6/2008 read with Notification No. 102/2007, the refund claim was rejected. Further, it was observed that the quantity imported and sold is not correlated. Being aggrieved the appellant is in appeal before this Tribunal.
3. As regards the first grounds of rejection the appellant draws my attention to copies of the sale invoices, as annexed in the appeal book, that it does not show the amount of SAD, on the sale bill. In such circumstances, the buyer from the appellant/importer cannot take credit. Secondly the appellant has affixed rubber stamp that No credit of additional duty of Customs levied. Thus the appellant as required have complied with pre-requisites, and accordingly, the appellant is entitled to refund of SAD. The second ground of rejection is that the quantity imported, which does not correlate exactly to the sale quantity. The appellant has filed a detailed sheet which shows the Bill of Entry wise quantity sold. From this chart it is evident that the appellant have sold quantity above 80% of the quantity imported in respect of each and every Bill of Entry. The appellant draws my attention to CBEC Circular No. 6/2008-Cus., where in para 4.2 it has been clarified that in the case where some part of the imported quantity, either loss or damaged, resulting in sale of part quantity and the importer submitting a refund claim for the quantity that was sold along with the declaration for the remaining quantity, they would not claim refund. The claim shall be entertained even for part quantity by the Customs Authority, till the period prescribed. The appellant has claimed refund which is not of 100% of the quantity imported, but more than 80%. The appellant further relies upon the ruling of this Tribunal in the case of M/s Khetalal Ratansi Patel Vs. CCE, Nagpur being final order No. A/1078-1079/14/SMB/C-IV dated 21.05.2014 where in similar facts and circumstances, the Tribunal has held that the appellant produced Chartered Accountant certificate and also filed the copy of Customs duty challan. Further Chartered Accountant certificate have certified by the amount of refund is shown in the books of account, as amount due - refund of additional Customs duty, and accordingly held entitled to refund of duty.
4. The learned A.R. appearing for the Revenue relies on the impugned order.
5. Having considered the rival contentions, I find that it is evident from the invoice of resale issued, that the amount of SAD is not mentioned, also that endorsement is there for non availability of credit of SAD. In fact the appellant has not passed credit of SAD to the buyer, and accordingly this ground is allowed in favour of appellant. So far the other ground, as regards correlation of quantity imported with sold, I find that the appellant have claimed refund for more than 80% of quantity imported. Resale of 100% of import quantity can rarely be possible in view of goods prone to damage, normal loss, etc. Hence the appellant succeeds on this ground also. Thus, the appeal is allowed and the impugned order is set aside. The adjudicating authority is directed to grant refund within 60 days from date of receipt of this order, with interest as per Rules.
(Dictated and pronounced in open Court) (Anil Choudhary) Member (Judicial) Sp 4