Custom, Excise & Service Tax Tribunal
Amicus Communications vs Cc Sea Ch - Iv on 28 May, 2025
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL, CHENNAI
Customs Miscellaneous Application No. 40743 of 2024
and
Customs Appeal No. 41497 of 2015
(Arising out of Order in Appeal C. Cus. II No. 287/2015 dated
30.3.2015 passed by the Commissioner of Customs (Appeals - II),
Chennai)
M/s. Amicus Communications Appellant
37/2711, 1st Floor, R.V. Buildings
Deshabhimani Jn. Kaloor
Ernakulam, Kerala - 682 017.
Vs.
Commissioner of Customs Respondent
Chennai II Commissionerate Custom House, 60, Rajaji Salai Chennai - 600 001.
APPEARANCE:
Ms. M. Punnagai, Advocate for the Appellant Shri Sanjay Kakkar, Authorized Representative for the Respondent CORAM Hon'ble Shri M. Ajit Kumar, Member (Technical) FINAL ORDER NO.40548/2025 Date of Hearing: 16.04.2025 Date of Decision: 28.05.2025 This appeal, filed by the appellant, is against Order in Appeal C. Cus. II No. 287/2015 dated 30.3.2015 passed by the Commissioner of Customs (Appeals), Chennai. Along with the appeal, the appellant has also filed miscellaneous application for taking additional evidence on record.
2. Brief facts of the case are that the appellant filed refund claim of Rs.9,74,328/- being the amount paid against 4% additional duty of 2 customs for the import of 'Panasonic Facsimiles, Multi-function printers Panasonic network camera, Panasonic PBX, Panasonic PBX, Panasonic Consumables vide 8 bills of entry. The appellant claimed refund in terms of Notification No. 102/2007-Cus, dated 14.9.2007 as amended from time to time along with relevant documents. On scrutiny of the documents, certain discrepancies were found. Hence deficiency memo was issued to the appellant for submitting the requisite documents. Since no reply was forthcoming from the appellant for more than three years, the Ld. Lower Authority rejected the refund claim on the following grounds;
"4. Non submission of mandatory documents The importer has not submitted certain mandatory documents viz sales invoices, ST/VAT returns, certificate from chartered accountant correlating the VAT/ST payments, certificate from Chartered Accountant stating that the burden of 4% Additional Duty paid has not been passed on to the buyer etc;
Due to non submission of the documents mentioned supra the issues like payment of VAT/ST correlation of VAT/ST with good sold, endorsement regarding non-admissibility of Cenvat Credit in sales invoice, adjustment or just enrichment etc;
A Deficiency Memo has been issued to the importer for non submission of the above mentioned documents and also an opportunity to be heard in person was also given to the importer asking him/his authorised representative to appear at 14:30 on 25.04.11 or 28.04.11 or 03.05.11. But, till date the importer neither submitted the required documents nor appeared in person.
In view of the above facts and discussion, I conclude that the above claim merits rejection for non-fulfillment of conditions 2(iii)(iv)(v)(vi)(vii) of Circular 16/2008-Customs dated 13102008."
In appeal, the Ld. Commissioner (Appeals) upheld the same. Hence the appellant is before this Tribunal. The appellant has subsequently also filed an 'Application for submission of additional documents', dated 20.11.2024.
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3. The learned Advocate Ms. M. Punnagai appeared for the appellant and Ld. Authorized Representative Shri Sanjay Kakkar appeared for the respondent.
4. Heard the Ld. Counsel for the appellant and the Ld. AR for revenue representing the contesting parties. I have also perused the Appeal Papers, considered the facts of the case and the judgments cited. I find that the appeal pertains to the rejection of the refund due to the non-submission of records evidencing the payment of duty in the manner provided in notification Notification No. 102/2007-Cus dated 14.9.2007 and the guidelines provided in Circular 16/2008 Cus., dated 13.10.2008.
4.1 The appellant has stated the following;
i) they have submitted the requisite documents vide their letter dated 15.10.2010.
ii) Bills of Entry and TR 6 challans are Customs Documents which can be verified by the Department itself. Similarly, missing endorsements by Banks on TR6 challans cannot be a reason for the denial of refund claims as it is evident that the duty has been paid by the appellant.
ii) as regards non-fulfilment of conditions 2 (iii), (iv), (v), (vi) and
(vii) of Circular 16/2008 Cus., dated 13.10.2008. All these documents are already submitted by the appellant on 15.10.2010 and they are ready to produce the copies before the Department once again.
iii) the refund can be granted after obtaining an indemnity bond.
iv) the provisions of Article 256 of the Constitution of India states that the recovery of taxes without any authority of law is a violation of Constitutional rights.
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v) they have relied on the following judgments in support of their view that refund can be granted after obtaining an indemnity bond;
a) COMMISSIONER OF CUSTOMS, COCHIN Vs SHREE
SIMANDAR ENTERPRISES - 2012(283) ELT 369.
b) SIVAMANI SPINNING MILLS PVT. LTD. Versus
COMMISSIONER OF C. EX., SALEM - 2009(240) ELT 447 (Tri- Chennai).
c) ZENITH LTD. Vs COMMISSIONER OF CENTRAL EXCISE, MUMBAI, reported in 2005(187) ELT 23 (Tri-Mumbai). 4.2 Per Contra revenue has stated;
i) a Deficiency Memo issued to the appellant on 11.04.2011 and personal hearings scheduled for 25.04.2011/ 28.04.2011/ 03.05.2011 did not elicit any response.
ii) before the Commissioner Appeals the appellant's representative submitted to have given all relevant documents on 15.10.2010, but could not produce any acknowledgment of the same.
ii) the original file was called for by Commissioner (Appeals) at the request of the appellant-claimant but the documents claimed to have been submitted by the claimant were not found in the said file and the appellant's contention in this regard was found incorrect. The appeal was hence rejected.
iii) it is not understandable as to how the documents claimed to have been submitted on 15.10.2010 could have been submitted prior to the date of lodging of the claim, stated as 26.10.2010 in the Order in Original.
iv) the appellant's averment in Para (p) of the 'Grounds', of their appeal, relying on Art.256 of the Constitution is grossly misplaced as 5 this is not a case of "recovery of taxes without any authority of law", as stated by the appellant.
v) all the citations put forth by the appellant pertain to missing minor documents for which records existed with the department and could be corroborated from credible source. However, in the instant case, the mandatory/critical documents are missing and there is no mechanism to reconstruct, revisit and appreciate the veracity of the documents for imports and sales that had taken place almost 15 years ago.
vi) As per the Tribunal in Sterlite Industries (I) Ltd Vs Commissioner of C. Ex., Tirunelveli [2017 (357) ELT 161 (Tri.- Chennai)], post adjudication certificates cannot be considered as additional evidence.
5. It is trite law that while exercising the power of appeal an authority is more concerned with the decision-making process. The fact that another view is possible is not enough to justify overturning the original decision. The decision must be demonstrably flawed or based on incorrect facts or law. However, while examining and scrutinising the decision-making process the given facts of the case are to be examined so as to test the Order on the grounds of illegality, irrationality or procedural impropriety. Mere disagreement with the decision-making process would not suffice. 5.1 In this case it is not disputed that the appellant had not supplied the complete set of documents required to process the refund claim. Conditions 2 (iii), (iv), (v), (vi) and (vii) of Circular 16/2008 Cus., dated 13.10.2008, require submission of - sale invoices in soft form for claiming refund, declaration for non- 6 admission of CENVAT Credit, payment of ST/VAT by cash or input tax credit, submission of original copy of ST/VAT Challan and unjust enrichment and its certification by Chartered Accountant. It is revenue's contention that in the instant case, while appellant has produced the imported related documents listed below, there is no document that evidences the post clearance payment of VAT/ST etc;
a) 8 original importers copies of the bill of entry
b) 8 TR6 challans against the said Bill of Entry
c) Self declaration from the appellant Hence the mandatory/critical documents are missing and there is no mechanism to reconstruct, revisit and appreciate the veracity of the documents for imports and sales that had taken place almost 15 years ago. Further as per the request of the appellant the Commissioner (Appeals) called for the file of the lower authority and found that the documents claimed to have been submitted by the appellant were not found in the said file and the appellant's contention in this regard was found incorrect. The appellant too did not possess any proof of submission of the documents, nor have copies of the missing documents been filed for perusal, along with the appeal. What adds weight to this claim is that a Deficiency Memo was issued to the claimant on 11.04.2011 and personal hearings scheduled for 25.04.2011/ 28.04.2011/ 03.05.2011 did not elicit any response. Further the appellants averment that the documents claimed have been submitted on 15.10.2010 appear to be even prior to the date of lodging of the claim, stated as 26.10.2010 in the Order in Original. Hence their submissions do not inspire confidence about the veracity of their claim.
75.2 The appellant has agreed to rectify the error in non-submission of any document by submitting an indemnity bond. I find that the purpose of submitting original documents with refund claims is not only for the purpose of verification but also for the purpose of marking the documents as having been produced and processed for a sanctioned claim so that a second claim with the same set of documents is not possible, thus reducing the chance of an error or fraud leading to leakages in government revenue. Hence while an indemnity bond can be accepted in the case of minor documents that are missing, the facility may not be available in the case of mandatory documents as per the subjective satisfaction of the proper officer sanctioning the claim.
5.3 The appellant has hence shown a lack of due diligence while preferring his refund claim. As per Black's Law Dictionary (Eighth Edition) "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonable expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. As per the Hon'ble Supreme court in Tata Chemicals Ltd. Vs Commissioner of Customs (Preventive), Jamnagar [2015 (320) E.L.T. 45 (S.C.)], if the law requires that something be done in a particular manner, it must be done in that manner, and if not done in that manner has no existence in the eye of law at all. 5.4 A Constitutional Bench of the Hon'ble Supreme Court consisting of 5 Judges in Commissioner Vs Hari Chand Shri Gopal -- 2010 (260) E.L.T. 3 (S.C.), held that, the mandatory requirements of the 8 conditions must be obeyed or fulfilled exactly, though at times, some latitude can be shown, if there is a failure to comply with some requirements which are directory in nature, the non-compliance of which would not affect the essence or substance of the notification granting exemption. In Tata Iron & Steel Co. Ltd. v. State of Jharkhand [(2005) 4 SCC 272)], the Apex Court held that the principles as regard construction of an exemption notification are no longer res integra; whereas the eligibility clause in relation to an exemption notification is given strict meaning wherefor the notification has to be interpreted in terms of its language, once an assessee satisfies the eligibility clause, the exemption clause therein may be construed literally. The eligibility for the benefit of Notification No. 102/2007-Cus, dated 14.9.2007 include;
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 of appropriate sales tax or value added tax, as the case may be, by the importer, on sale of such imported goods.
Hence the documents to be produced by the appellant to claim a refund are not merely a procedural issue and an indemnity bond will not suffice.
95.5 As regards submission of additional documents, before me vide Application dated 20.11.2024, it is found that none of the photo copies have been authenticated and do not inspire confidence in the first place. Secondly, ordinarily fresh evidence cannot be entertained at the Tribunal. Rule 23 of the Customs Excise Service Tax Appellate Tribunal (Procedure) Rules, 1982 states that the parties to the appeal shall not be entitled to produce any additional evidence, either oral or documentary, before the Tribunal. Hence the power to allow additional evidence at the Tribunal level, whether on fact or law, oral or documentary is discretionary in nature. The parties are not entitled, as of right, to the admission of such evidence. As per judicial pronouncements an application for additional evidence is not allowed when:
(i) The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, the Appellate Court can take additional evidence in exceptional circumstances.
(ii) The parties are not entitled, as of right, to the admission of such evidence.
(iii) The admission of additional evidence does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment.
(iv) The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself.
(v) Where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment.
(vi) It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence.
(vii) It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court.
So a party who had ample opportunity to produce certain evidence 10 in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal.
(viii) The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause". The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
(ix) no reasonable care or due diligence was shown in presenting the evidence at the Original forum.
(x) the evidence would introduce a new cause of action which completely alters the appeal and would aid the appellant to establish a new case in an appeal, which seeks to take away a vested right of limitation or any other valuable right accrued to the other party. This could then lead to unending legal disputes.
(xi) no compelling reason or substantial cause has been shown to permit the additional evidence
(xii) the additional evidence seeks to fill in gaps or restore weak areas in the case.
(xiii) the rival party has not been given an opportunity to rebut it.
(xiv) the additional evidence is not of an unimpeachable character.
I find that the appellant had ample opportunity to produce the requisite documents before the lower authorities by replying to the Deficiency Memo or by availing the opportunities for personal hearing and explaining their case, which they have failed to do, or elected not to do so. When their claim of filing the requisite documents was tested by the Commissioner Appeals by calling for the file of the lower authority, no such documents were found. Hence no compelling reason or substantial cause have been shown to permit the additional evidence. Further as stated above the documents itself have not been authenticated and do not inspire confidence. They have made a promise of filing an indemnity bond, which has not found acceptable when the missing documents were found mandatory for making a claim. 11 Hence the additional evidence submitted cannot be admitted and are rejected.
5.6 The appellant has stated that the provisions of Article 256 of the Constitution of India states that the recovery of taxes without any authority of law is a violation of Constitutional rights. I find that Notification No. 102/2007-Cus, dated 14.9.2007 has been issued in exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962. There is no challenge to its vires. Hence the tax paid by the appellant cannot be stated to have been done without the authority of law.
5.7 The appellant has also relied upon three judgments as cited above in support of their stand. I find that the said judgments do not lay down any principle and are rendered as per the peculiar facts of the case and are not applicable to the present situation. In Eagle Flask Industries Limited Vs Commissioner of Central Excise, Pune [2004 (171) E.L.T. 296], one of the contentions raised on behalf of the assessee was that when the items were exempt from duty, the mere lapse of non-submission of a declaration in terms of exemption notification did not disentitle the assessee from benefits otherwise available under the notification. These arguments advanced on behalf of the assessee were rejected. The Hon'ble Court stated;
This is not an empty formality. It is the foundation for availing the benefits under the Notification. It cannot be said that they are mere procedural requirements, with no consequences attached for non- observance. The consequences are denial of benefits under the Notification. For availing benefits under an exemption Notification, the conditions have to be strictly complied with. 12 5.8 Considering the totality of the issue no purpose will be served in remanding the matter back to the Original Authority as the appellant was seen to have been given ample opportunity to produce the requisite records but have failed to do so.
5.9 Having regard to the discussions above, the impugned order is upheld and the appeal and the application for submission of additional documents are rejected. The appeal is disposed of accordingly.
(Pronounced in open court on 28.05.2025) (M. AJIT KUMAR) Member (Technical) Rex