Custom, Excise & Service Tax Tribunal
M/S Armstrong World Industries (India) ... vs Cce, Thane I on 3 January, 2014
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II
APPLICATION NO. C/S/1809/11
IN APPEAL NO. C/736/11
(Arising out of Order-in-Appeal No. YDB/179/KALYAN-II DN/2011 dated 22.07.2011 passed by the Commissioner of Central Excise (Appeals), Mumbai- I.)
For approval and signature: Honble Shri Anil Choudhary, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No 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 : yes CESTAT (Procedure) Rules, 1982 for Publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the order?
4. Whether Order is to be circulated to the Departmental : yes authorities?
M/s Armstrong World Industries (India) Pvt. Ltd.
: Appellant
Versus
CCE, Thane I
: Respondent
Appearance Mrs. Lakshmi Menon, Advocate : For Appellant Shri V.C. Khole, Dy. Commissioner (A.R.) : For Respondent CORAM:
HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) Date of Hearing : 03.01.2014 Date of Decision: 03.01.2014 ORDER NO.......................................................
Per: Anil Choudhary:
The appellant M/s Armstrong World Industries (India) Pvt. Ltd. are engaged in the business of importing articles like Mineral Fibre sound absorbing sheets, Gypsum ceiling board, Steel angles, Wooden Parquet Flooring etc. and resale the same in pursuance of exemption special CVD under Notification No. 102/2007- Cus. dated 14.09.2007.
2. Vide the impugned order passed by the Commissioner (Appeals) dated 22.07.2011, the refund claim sanctioned to the appellant of the CVD as per Notification No. 102/2007 was disallowed by setting aside the Order-in-Original. The Commissioner (Appeals) has recorded following findings after considering the submissions made by the appellant:-
(i) The importer, while issuing the invoice for sales of the imported goods was required to indicate in the invoice 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. In the Order-in-Original the lower authority has clearly failed to discuss as to whether the importer have fulfilled the said condition or not while deciding the refund claim.
(ii) The importer has contravened the CBEC directions vide Circular No. 6/2008 which provides as under:-
Only a single claim against a particular bill of entry should be permitted to be filed within the maximum time period of one year. Filing of refund claim for a part quantity in a bill of entry shall not be allowed except when this is necessary at the end of the one year period. Evidently the importer has contravened the CBEC direction other wise binding.
(iii) As regard unjust enrichment, the adjudicating authority found one entry in the Balance Sheet of the importer, wherein the amount due as refund of Additional duty of Customs, and taking into consideration came to the conclusion. That the amount of CVD, in question is refundable to the importer/appellant and unjust enrichment is not there. Placing reliance on the ruling in the case of Commissioner of Customs (Import) Mumbai Vs. BE Office Automation Pvt. Ltd.- 2009 (235) ELT. 838 (Tri. Mum.), have held - the appellant have submitted that the Chartered Accountants certificate, the adjudicating authority have failed to examine that the importer has not passed on the burden of duty to their consumer, without examining corroborative evidence.
(iv) In respect of eight nos. of ex-bond bills of entry, wherein the address of their Lower Parel office is mentioned with the Assistant Commissioner of Central Excise, Kalyan-II Division, and subsequently sanctioned by the original adjudicating authority, it is settled position that the refund/rebate claim should be submitted with the jurisdictional authority as mentioned on the Bill of Entry, which have not been done, in accordance with law.
3. The ld. Counsel for the appellant have made the following submissions:-
3.1 As regards the first objection of the Commissioner (Appeals), the order is vitiated as the Commissioner (Appeals) has erred in not taking notice of the categorical findings mentioned in para 4.05 of the Order-in-Original, wherein details are as under:-
4.05 The goods covered by these Bill of Entries were sold to different buyers and the state government levies like Sales Tax/VAT/CST have been paid by the claimant as evidenced by the ST/CST/VAT challans furnished. The sales invoices have been marked 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. 3.2 As regards the Second objection taken in the impugned order regarding single claim against the Bill of Entry, the findings recorded in para 4.07 & 4.08 of the Order-in-Original is relied upon wherein details are as under:-
4.07 The description and the item code no. Shown in the Bill of Entries match with the sales invoices produced thereby correlating the import of the goods with the sold ones. The refund claim in respect of the Bill of Entries has been filed within a prescribed period of one year as provided by amending Notification No. 93/2008-Customs dated 01.08.2008 amending para 2 (c) under Notification No. 102/2007- Customs dated 14.09.2007. The difference noticed in the quantity of goods shown in the sales invoices and the quantity shown in the Bill of Entries is due to the fact that the sales invoices contain the goods cleared from Customs bonded warehouses, debonding of goods from private bonded warehouses and goods directly from docks i.e. JNPT.
4.08 The Range Officer has also reported that the refund claim is in order and the verification of all the original documents viz. CST/ VAT challans, Bill of Entries, TR 6/GAR 7 Challans and Sales Invoices has been carried out by them. It is further pointed out that in the Circular No. 6/2008 also, exception have been provided and accordingly the claim was rightly allowed. There have been no findings to the contrary.
3.3 As regards the third objection of the appellant relies on the categorical findings recorded in para 4.04 & 4.06 of the Order-in-Original which are reproduced below:-
4.04 The certificate of the Chartered Accountants, M/s Suber Bohari & Associates, certifies that M/s Armstrong World Industries (India) Pvt. Ltd., have paid Customs duty including SAD on the goods cleared under the Bill of Entries vide respective TR 6/ GAR 7 Challans mentioned therein and it also certifies that total quantity of the goods have been sold and the VAT/CST payable on the sales of the said quantity has also been paid. The claimant has also submitted certified copies of separate ledger maintained in respect of Special Additional Duty (SAD) showing the claimed refund amounts as receivable in the books of accounts.
4.06 The claimant has produced Chartered Accountant Certificate (Annexure II), as per directives issued under CBECs Circular No. 6/2008-Customs dated 13.10.2008 issued under F. No. 401/104/2007-Cus. III certifying that the goods imported under the said Bill of Entries were sold and the VAT/CST payable on the goods has been paid alongwith supporting documents of proof of payment of appropriate VAT/CST. The said Chartered Accountant has also certified as prescribed in CBECs Circular No. 6/2008 dated 28.04.2008, issued under F. No. 401/104/2007-Cus. III, stating that refund being claimed is being shown in the Books of Accounts /Balance Sheet as Amount due as refund of Additional Duty of Customs and as such the burden of 4% CVD has not been passed on by the importer and they fulfil the requirement of unjust enrichment. Moreover, as prescribed additionally in the said Circular the claimant has filed a self-declaration to the effect that he has not passed on the incidence of 4% CVD to any other person. As such the claimant has complied with directives issued under the Boards letters dated 28.04.2008 & 13.10.2008. 3.4 As regards the fourth objection regarding jurisdiction, the appellant states that the issue is no more res-integra and have been settled by Larger Bench of this Tribunal in the case of Ferro Alloys Corporation Ltd. Vs. Collector of Customs (Appeals), Bhubneswar 1995 (77) ELT 310 (Tribunal), wherein it has been held that the goods imported herein are cleared for being warehoused on an into bond Bill of Entry and not Home Consumption Bill of Entry at the Customs House of origin, and in bond manufacture of the export product takes place at appellants Export Oriented Unit which is licensed under section 58 as a private bonded warehouse from where ex-bond clearances will have to take place. In the circumstances of this case the jurisdiction for raising demand for short levy will be with the proper officer having jurisdiction over the export oriented unit and not the Custom House where the goods were assessed on an into bond Bill of Entry for the purpose of being warehoused.
3.5 Thus, emphatically prays for allowing the appeal with consequential benefits.
4. The ld. A.R. appearing for the Revenue relies on the impugned order.
5. Having considered the rival submissions, I find force in the arguments of the appellant on each of the points. Further, I find that the impugned order is cryptic and have failed to take notice of the categorical findings recorded in the Order-in-Original. Thus, the impugned order of Commissioner (Appeals) is set aside and the Order-in-Original is restored. Thus, the appeal is allowed with consequential relief, if any.
(Operative portion of the order pronounced in the Court) (Anil Choudhary) Member (Judicial) Sp 2