Custom, Excise & Service Tax Tribunal
M/S. K.I. International Ltd vs Cc, Chennai on 15 March, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
C/40292/2013
(Arising out of Order-in-Appeal C.Cus. No. 1500/2012 dated 14.12.2012 passed by the Commissioner of Customs (Appeals), Chennai).
M/s. K.I. International Ltd. : Appellant
Vs.
CC, Chennai : Respondent
Appearance Shri M.A. Mudimannan, Advocate, for the Appellant Shri K.P. Muralidharan, AC (AR), for the Respondent CORAM Honble Shri P. K. Choudhary, Judicial Member Date of Hearing/Decision: 15.03.2016 FINAL ORDER No. 40595 / 2016 M/s. K.I. International Ltd., Chennai, filed 5% additional duty refund application in respect of the goods imported and cleared in terms of Notification No. 102/2007 dated 14.09.2007. The Dy. Commissioner of Customs (Refunds) after verification of all the documents sanctioned the refund vide Order-in-Original No. 12123/2010 dated 31.05.2010. Against this, the department filed appeal before the Commissioner (Appeals) on the ground that the genuinity of endorsement on the pre-printed sales invoices has not been discussed in the order and hence it appears that the stamp endorsements were not appearing on the invoices issued to the buyers and it was alleged that these endorsements made on the pre-printed invoices afterwards for the purpose of submission to the Customs only for claiming the refunds. The date of hearing before the Ld. Commissioner (Appeals) was fixed on 21.08.2012. The Ld. Counsel representing the appellant Company sought adjournment on account of personal inconvenience and prayed for hearing on some other day. The Ld. Commissioner (appeals) ignoring the request for adjournment and proceeded to pass the order on the basis of the case records. The relevant portion of the Order-in-Appeal is reproduced as under:-
3. A personal hearing was offered on 21.8.2012 and was represented by Shri. Suman Kumar Kujur, Deputy Commissioner on behalf of the appellant and none on behalf of the respondent. The DC, Refunds reiterated the grounds of appeal already filed by the department.
4. I have carefully gone through the case records and submission made by the Respondent. From the records before me, I find that neither the appellant nor the respondent produced any documents to verify the stand taken by the department or against the department by the respondents. The LAA also did not forward the original case file in spite of repeatedly calling for the same. Hence, I do not have any other option except to allow the department appeal back to the LAA for considering the departmental plea by verifying with the sales invoices from the ultimate buyers.
5. However, the appellant is directed to produce all the required documents to the LAA, who can verify the same with the original records from which they found out the discrepancy and if found correct impugned order by the LAA stands good. Other wise the LAA may pass a fresh order as per law after following the principles of natural justice.
6. In view of the above discussions and facts stated therein the Departments appeal is allowed.
On the basis of the discussions in the paragraphs above, he remanded the matter back to the lower adjudicating authority to pass a fresh order as per law. Being aggrieved by the order of the Ld. Commissioner (Appeals), the appellant company is in appeal before this Tribunal.
2. The Ld. Counsel Shri M.A. Mudimannan, Advocate appearing on behalf of the appellant Company drew my attention to the finding in the Order-in-Original dated 31.05.2010, wherein the Dy. Commissioner of Customs (Refunds) before passing the order sanctioning the refund has discussed the entire facts and the legal provisions in detail. The relevant portion of the said order is reproduced as under:-
The Importer has submitted all the TR-6 Challans along with the respective/Bills of Entry. Thus the condition 2 (a) as envisaged in the said notification is fulfilled.
All the sales invoices submitted are indicating, 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 . By this way the claimant has fulfilled the condition 2(b) of the said notification.
The Importer has imported all the consignment through Chennai Sea Port and filed their refund claim with jurisdictional authority i.e with the Assistant commissioner of Customs (Refund), Chennai Sea Port before the expiry of one year from the date of payment of the said Additional Duty of customs. THUS the condition 2(c) of the said notification is fulfilled.
The Importer has submitted the original sale invoices and all CST/VAT payment challan in support of their claim. The Invoices are indicating the charging of sales tax. They have produced document in support that the CST/VAT has been paid to the respective Sales Tax Authorities. The Chartered Accountant has co-related the claimants import documents with sales invoices of the said goods and certified that they paid VAT/CST against Invoices produced for this refund. Thus the condition 2(d) of the said notification is fulfilled.
The claimant also satisfied the condition 2(e) of the said notification by furnishing requisite documents, VIZ original Bills of Entry and TR-6 Challans evidencing payment of 4% Additional Duty. Sales Invoices evidencing sale of goods on payment of appropriate VAT/CST Challans evidencing payment of VAT/CST. He relied on the decision of the Tribunal in the case of CC (Imports), Mumbai Vs. Clestra Modular Systems Pvt. Ltd. - 2010 (249) ELT 152 (Tri.-Mum), wherein the Co-ordinate Bench has observed that the Commissioner (Appeals) has no power to remand the case back to the original authority w.e.f. 11.05.2001 under Finance Act, 2001. He also relied on the LB decision of the Tribunal in the case of Chowgule and Company Pvt. Ltd. Vs. CCE 2014 (306) ELT 326 (Tri.-LB). He further submits that the decision of the LB is squarely applicable and prayed that the impugned order may be set aside.
3. On the other hand, Ld. AR Shri K.P. Muralidharan, AC, appearing on behalf of the Revenue reiterated the statement of facts and grounds of appeal before the Ld. Commissioner (Appeals) and also the findings of the Ld. Commissioner (Appeals) and submits that there is no infirmity in the order of the adjudicating authority and also brought to my notice that the ground taken by the appellant company in the grounds of appeal regarding violation of Principles of Natural Justice is not correct and their claim that the order passed by the Ld. Commissioner is without proper jurisdiction. Hence, he prays for rejection of the appeal filed by the assessee and to uphold the order of the Ld. Commissioner (Appeals)
4. Heard both sides and on perusal of records I find that the issue lies in a narrow compass regarding claim of refund of additional duty of customs levied under sub-section 5 of section 3 of Customs Tariff Act, 1985. On going through the Order-in-Original, I find that the adjudicating authority after discussing the facts and circumstances of the case and the statutory compliances made by the appellant company held as under:-
In view of the foregoing facts, discussions and circumstances, it is established that the said amount of 4% Additional duty of customs paid has not been passed on to the customers or any other person as it was not included in the selling price of the imported goods and hence the grant of refund in the present case will not enrich the claimant unjustly. The claimant has fulfilled all the conditions of Notification No. 102/2007-Cus. Dated 14.09.2007 as amended by Notification No. 93/2008-Cus. Dated 01.08.2008 read with the Boards circular No. 6/2008-Cus. Dated 28.04.2008 and 16/2008-Cus. Dated 13.10.2008 and hence the refund of 4% Additional duty of customs so paid to the tune of Rs. 48,25,743/- is admissible and in order. On going through the statement of facts and grounds of appeal of the Revenue before the Ld. Commissioner (Appeals), I find that the only issue raised by the Revenue is as under:-
The sales invoices bear stamped information and non-admissibility of credit of Additional Duty. The genuinity of such endorsements on the pre-printed sales invoices is not discussed in the order and hence it appears such stamped endorsements were not appearing on the invoices issued to the buyers and they have been put on the pre-printed sales invoices afterwards for the purpose of submission to Customs only for claiming the refund. Hence, sanctioning the refund claim of 4% Additional duty of customs by placing reliance on such invoices does not appear to be correct and hence the order-in-original merits review. The Ld. Commissioner (Appeals) in his impugned order has not discussed the merits of the case and remand the matter back to the lower appellate authority, which is beyond the jurisdiction w.e.f. 11.05.2001 under Finance Act, 2001 as observed by the Tribunal, in the case of Clestra Modular Systems Pvt. Ltd. (supra). Further, the LB of this Tribunal has held that even if there is no endorsement in the commercial invoices, the SAD of refund should be allowed. The relevant para 5.4 is reproduced as under:-
5.4?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. By respectfully following the decision of the Tribunal cited supra, the impugned order is set aside and the appeal filed by the appellant is allowed.
(Order Dictated and pronounced in the Open Court) (P.K. CHOUDHARY) Judicial Member BB 1