Custom, Excise & Service Tax Tribunal
M/S Vikash Globalone Ltd vs Commissioner Of Customs (Crc-I), Jnch, ... on 22 December, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. III Appeal No. C/88316/14 (Arising out of Order-in-Appeal No. 1731 (CRC-II)/2014/JNCH/IMP-1666 dated 16.4.2014 passed by the Commissioner of Customs (Appeals), JNCH, New Delhi). For approval and signature: Honble Shri Raju, Member (Technical) ======================================================
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 Vikash Globalone Ltd. Appellant Vs. Commissioner of Customs (CRC-I), JNCH, Nhava Sheva Respondent Appearance: Shri Ashok Kumar Singh, Advocate for Appellant Shri Kamal Puggal, AC (AR) for Respondent CORAM: SHRI RAJU, MEMBER (TECHNICAL) Date of Hearing: 27.11.2015 Date of Decision: .2015 ORDER NO. Per: Raju
The appellants have filed refund claim against two Bills of Entry No. 977239 dated 26.9.2005 and 934439 dated 8.8.2005. A dispute regarding the value of the goods was raised in respect of said Bills of Entry was decided after a long litigation. The appellants claimed consequential refund of the duty paid. The CESTAT in Appeal No. C/216/11 vide Order No. A/280/2012/SMB/C-IV dated 27.9.2012 has directed the department to process the refund claim within 30 days. While passing the said order, the Tribunal directed the adjudicating authority to consider the bar of unjust enrichment as well. The adjudicating authority asked the appellant to submit evidence of non-availment of CENVAT Credit and evidence of non-passing on the burden of duty to the buyers. The appellant submitted Xerox copy of sales invoice on which a stamp was put stating Not for CENVAT/ No goods for input tax credit. The appellant also submitted a C.A. certificate which stated that a certain amount of duty on account of valuation is recoverable from Customs department against goods imported vide Bill of Entry No. 977239 dated 26.9.2004. The said certificate also stated that on going through the Books of Account and Sale invoice, it is certified that the appellant has not passed on the burden of additional duty to the customers. The Assistant Commissioner however rejected the claim of refund on the grounds that evidence of non-availment of CENVAT Credit has not been submitted and the refund claim filed by the importer is incomplete. The matter was taken up in appeal before the Commissioner (Appeals), who also upheld the Order-in-Original on the grounds that no evidence of non-availment of CENVAT Credit has been submitted. The said order also observed that the appellants have failed to produce the copy of sales invoice.
2. The learned Counsel for the appellants argued that they have indeed produced sales invoice in original before the original adjudicating authority, however, since the original adjudicating authority has mis-placed all the documents, they had submitted a fresh set which was copy of the documents earlier submitted. He further pointed out that the invoice has been placed in the appeal memorandum. He pointed out that in all invoices it is cleared stamped that it is marked No good for input tax credit and also marked Not for CENVAT. He further argued that in the balance-sheet for the year 2006-07, in annexure-3 they have clearly shown the customs duty paid of Rs.1,94,352/- as advance recoverable in cash or kind. On that basis, he argued that they have not passed on the burden of duty to the customers.
3. Learned AR relies on the impugned order. He further argued that no evidence of non-availment of CENVAT Credit has been given. He further argued that there is no mention of submission of original sales invoices in their original refund application.
4. I have gone through the rival submissions. I find that the Bills of Entry are dated 26.9.2005 and 8.8.2005. If the amount of duty paid at that time was not recovered, the same should appear in the Balance-sheet of 2005-06 as recoverable. A perusal of the Annexurte-3 to the Balance-sheet produced by the appellant shows that while Rs.1,94,352/- is shown as recoverable as on 31.3.2007, no such amount is shown as recoverable in the previous year i.e. 31.3.2006. If the said amount pertained to the Bill of Entry in dispute then it should have appear as amount recoverable in the Balance-sheet of 2005-06 and it should have been shown as amount recoverable as on 31.3.2006. Furthermore, a perusal of the invoice produced by the appellant shows that the appellant has indeed passed on the burden of duty to the buyers. The appellant importer is also a registered dealer, registered with Central Excise. The invoice being issued by him are under the Central Excise Rules, the invoice clearly show the amount of duty is being passed on. The invoices are required to show in the format prescribed under the law in respect of each consignment the amount of duty passed on. In fact, the appellant being a registered dealer is legally required to take credit of the duty paid and in each invoices pass on proportionate credit to the buyers. The invoices produced by the appellant show that he has done so. Not only he has taken credit but also passed on the same to the buyers.
5. In view of the above, it is felt that appellant has passed on the credit to the buyers and also passed on burden of duty to the buyers. In these circumstances, no refund can be sanctioned to the appellant. The appeal is therefore dismissed.
(Pronounced in Court on .) (Raju) Member (Technical) Sinha 1 Appeal No. C/88316/14