Custom, Excise & Service Tax Tribunal
Dell International Services India Pvt ... vs Commissioner, Customs (Import)-New ... on 29 September, 2022
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI.
PRINCIPAL BENCH - COURT NO. II
Custom Appeal No. 51873 of 2021-SM
(Arising out of Order-in-Appeal No.CC(A)/CUSTOMS/D-I/ACC/IMP/408-409/2019-20
dated 31.10.2019 passed by the Commissioner of Customs (Appeals), New Delhi).
M/s Dell International Services Appellant
India Pvt ltd
Divyashree Greens No. 12/1, 12/2A &13/1A
Koramangala Inner Ring Road
Domlur Post, Bengaluru-560 071
VERSUS
Commissioner , Customs (Import) Respondent
New Delhi (Import) New Customs House, Near IGI Airport New Delhi-110 037 APPEARANCE:
Miss. Reena Rawat, Advocate for the appellant Shri Ishwar Charan, Authorised Representative for the respondent CORAM:
HON'BLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) FINAL ORDER No. 50966 / 2022 DATE OF HEARING: 29.09.2022 DATE OF DECISION: 29.09.2022 ANIL CHOUDHARY:
The Appellant is an importer-trader. They import computers and resale the same. The appellant is admittedly not registered under the provisions of Central Excise on Service Tax. At the time of import, the appellant paid 4% SAD (Special Additional Duty) which is levied in lieu of sales tax, by way of equalisation levy under the Customs Tariff Act.
In order to avoid the double taxation on the importers, where the importers have resold the goods on payment of VAT/sales tax, refund mechanism is provided vide Notification No. 102/2007-Cus, for refund of the SAD paid at the time of import. The conditions prescribed in para
2 of the notification for refund are as follows:
2 C/51873/2021 "The exemption contained in this notification shall be given effect if the following condition 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 goods with the jurisdictional customs officer;
(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 if appropriate sales tax or value added tax, as the case may be, by the importer, on sale of such imported goods."
2. The appellant had filed refund claim of SAD with respect to 60 Bills of Entry totalling an amount of Rs. 16,12,974/- which was received in the Customs office on 07/09/2016 with respect to Bills of entry dated 07/09/2015 to 31/12/2015. On receipt of the refund claim, revenue issued deficiency memo dated 24/10/2016 indicate the following two discrepancies;
i Calculation-Cum-Co-relation sheet has not been submitted (Certified by CA).
ii Sale invoices for respective Bills of Entry has not been submitted. The appellant by their reply dated 14/11/2016 received in the office of the Superintendent (refund) on 18/11/2016, categorically mentioned that they have already submitted all the documents, however they are again enclosing all the documents. It was further pointed out that as regards the 3 C/51873/2021 endorsement of the sale bills as per para 2(b) of the notification, reliance was placed on the Larger Bench Ruling of the this Tribunal in the case of Chowgule & Company Pvt Ltd. Vs. CCE 2014 306 ELT 326 (Tri. Larger Bench), wherein it have been held that where an importer-trader who is not registered with the Central Excise Department, resales the imported goods on commercial invoice, there is no question of passing on the benefit of SAD to the buyer of the goods. Hence, absence of endorsement as required under Clause 2(b) of the notification does not affect the eligibility of refund, if other conditions are met. The refund claim was adjudicated vide OIO dated 11/04/2017 and the refund claim rejected observing that the appellant have not submitted:
i) Calculation-cum-co-relation sheet
ii) sale invoice
iii) VAT/CST challan and returns,
iv) Summary of sale invoices
v) Authority letter
3. It was further observed that only CA certificate was available on the record. Thus, the refund was rejected for non-compliance of condition 2(b) & 2(e) (ii) of the said Notification No. 102/2007-CUS.
4. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals) who vide impugned Order-in-Appeal have been pleased to uphold the rejection of refund.
5. Learned Counsel for the appellant inter alia urges that rejection of refund for compliance of condition No. 2(b) is hit by Chowgule & Company Pvt Ltd (Supra). Regarding rejection for condition 2(e) (ii) which requires to file copy of invoices of sale of imported goods in 4 C/51873/2021 respect of which refund of SAD have been claimed, it is urged that a copy of such invoiced was definitely filed not once but twice, and hence, the rejection on this ground is bad.
6. Accordingly, learned Counsel prays for allowing the appeal.
7. Learned AR for the revenue relies on the impugned order.
8. Having considered the rival contentions, I find that the issue herein is squarely covered by the interpretation of the Larger Bench of this Tribunal in the case of Chowgule & Company Pvt Ltd (Supra) in favour of the appellant-assessee.
9. So far condition no. 2 (e) ii is concerned, it is apparent from the copy of receipt for filing refund claim that the appellant had filed the copy of sale invoices and also summary of sale invoices etc. Thus, I find that refund claim has been rejected without any reason and on flimsy ground. Further, such rejection of refund is bad in law and also ignoring the binding judgment of this Tribunal in the case of Chowgule & Company Pvt Ltd.
10. In view of my aforementioned findings, I allow the appeal and set aside the impugned order, the Adjudicating Authority is directed to grant the refund within a period of 60 days from the date of receipt of the copy of this order, alongwith interest as per rules. Appeal allowed.
(Order pronounced in the open court) (Anil Choudhary) Member (Judicial sb