Custom, Excise & Service Tax Tribunal
Mediatech India Distribution Pvt. Ltd vs Commissioner Of Customs on 31 December, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. II APPEAL No.C/89127/13 (Arising out of Order-in-Appeal No.MUM-CUSM-AMP-111-13-14 dated 10/07/2013 passed by Commissioner of Customs (Appeals), Mumbai) For approval and signature: Honble Mr. P.R. Chandrasekharan, 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 :
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?
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Mediatech India Distribution Pvt. Ltd., Appellant
Vs.
Commissioner of Customs
(ACC & Import), Mumbai Respondent
Appearance:
Shri.M.L.Grover, Advocate for appellant
Shri.A.K.Singh, Addl. Comm. (AR), for respondent
CORAM:
Honble Mr. P.R. Chandrasekharan, Member (Technical)
Date of Hearing : 31/12/2014
Date of Decision : 31/12/2014
ORDER NO
1. The appeal is directed against Order-in-Appeal No.MUM-CUSM-AMP-111-13-14 dated 10/07/2013 passed by Commissioner of Customs (Appeals), Mumbai. Vide the impugned order, the learned lower appellate authority has set aside the order of the adjudicating authority granting refund of SAD paid by the appellant, M/s.Mediatech India Distribution Pvt. Ltd. under Notification No.102/2007-Cus dated 14/09/2007 only on the ground that the appellant failed to make any endorsement in the commercial invoices issued for the domestic sale that no credit of SAD of Customs levied under sub-section (5) of Section 3 of the Customs Tariff Act, shall be admissible. Aggrieved of the same, the appellant is before us.
2. The learned Counsel for the appellant submits that the appellant is not a dealer registered for issue of cenvatable invoices. The appellant imported goods paying SAD of Customs and thereafter, sold the goods in the domestic market on payment of Sales Tax/VAT liability. In terms of Notification No.102/2007, the appellant was entitled to claim refund of the SAD paid on the imported goods inasmuch as Sales Tax/VAT liability has been discharged on the resale of the goods in India. The matter was examined at length by the Assistant Commissioner of Customs who after satisfying that the appellant has not passed on the incidence of SAD to the buyers, sanctioned the refund of Rs.1,18,018/- of the SAD paid. In appeal, the lower appellate authority has set aside the said order, only on the ground that there is no endorsement in the domestic sale invoices that the buyers are not entitled to take Cenvat credit of the SAD paid on the imported goods. The learned Counsel also submitted copies of the invoices issued from domestic sale. In the said invoices, there is no indication whatsoever of the SAD paid and the only tax amount indicated is that of Sales Tax/VAT. The said invoice also does not contain the registration number of the appellant under the Cenvat Credit Rules as a dealer in cenvatable goods authorised to issue cenvatable invoices. Under Rule (9) of the Cenvat Credit Rules, 2004, credit can be taken only if the duty amount is clearly specified and also the registration number and address of the manufacturer or the authorised dealer is indicated. In the absence of these details, no credit under the Cenvat Credit Rules can be taken. Therefore, on the strength of the invoices issued by the appellant, nobody could have availed any Cenvat Credit. The very same issue was considered by the Larger Bench of this Tribunal in the case of Chowgule & Company Pvt. Ltd. Vs. CCE 2014 (306) ELT 326 (Tri-LB) and Larger Bench of this Tribunal concluded as follows:
In view of the factual and legal analysis as above, we answer the reference made to us as follows. A trader-importer, who paid SAD on the imported .good and who discharged VAT/ST liability on subsequent sale, and who issued commercial invoices without indicating any details of the duty paid, would be entitled to the benefit of exemption under Notification 102/2007-Cus., notwithstanding the fact that he made no endorsement that credit of duty is not admissible on the commercial invoices, subject to the satisfaction of the other conditions stipulated therein. The above decision is rendered only in the facts of the case before us and shall not be interpreted to mean that conditions of an exemption notification are not required to be fulfilled for availing the exemption.
Inasmuch as the appellants case is covered by the Larger Bench decision, the order of the lower appellate authority merits to be set aside and the appellant granted the refund.
3. The learned Additional Commissioner (AR) appearing for the Revenue reiterates the findings of the lower appellate authority.
4. I have carefully considered the submissions made by both the sides.
4.1 As is evident from the domestic sale invoices, there is no mention anywhere in those invoices of the SAD paid by the importer. Further, there is no registration number of the appellant as a cenvatable dealer mentioned in those invoices. Therefore, in terms of the Rule 9 of the Cenvat Credit Rules, 2004, the tax invoices issued by the appellant is not a cenvatable document(s) at all and hence, no credit of any import duty paid by the appellant can be taken on the strength of these invoices, notwithstanding the non-making of endorsement in this regard on the documents. Thus, the issue involved herein is squarely covered by the decision of the Larger Bench cited supra. Accordingly, I allow the appeal by setting aside the impugned order.
(Dictated in Court) (P.R. Chandrasekharan) Member (Technical) pj 1 5