Custom, Excise & Service Tax Tribunal
Commissioner Of Customs, Chennai vs M/S. Jain Agencies on 3 June, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
C/S/40683/2014 and C/40483/2014
[Arising out of Order-in-Appeal No.C.Cus. No.1819/2013, dated 09.12.2013 passed by the Commissioner of Customs (Appeals), Chennai]
FOR APPROVAL AND SIGNATURE:
Honble Shri Pradip Kumar Das, Judicial Member :
Honbe Shri R. Periasami, Technical Member :
1. Whether Press Reporters may be allowed to see 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 the Members wish to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Commissioner of Customs, Chennai
Appellant
Versus
M/s. Jain Agencies
Respondent
Appearance:
Ms. Indira Sisupal, AC(AR) Shri S. Janakiraman, Adv.
For the Appellant For the Respondent CORAM:
Honble Shri Pradip Kumar Das, Judicial Member Honbe Shri Periasami, Technical Member Date of hearing : 03-06-2014 Date of decision : 03-06-2014 FINAL ORDER NO. 40526 / 2014 Per Pradip Kumar Das:
As the issue involved in this appeal lies in a narrow compass, after disposing of the stay application filed by the Revenue, the appeal is taken up for hearing.
2. The respondent imported Zinc Scrap Saves, Tin Ingots, Copper Scrap Dream during the period from 04.01.2012 to 20.08.2013 under the cover of seven Bills of Entry. They filed application on 04.01.2012 for refund of Rs.34,97,047/- of 4% Additional Duty of Customs leviable under Section 3(5) of the Customs Tariff Act, 1965. The refund claim was filed in terms of Notification No.102/2007-Cus. dated 14.09.2007 as amended by Notification No.93/2008, dated 01.08.2008 read with Boards Circular No.6/2008-Cus. dated 28.04.2008 and 16/2008-Cus. dated 13.10.2008. The Adjudicating authority sanctioned the refund of Rs.6,46,726/- and rejected the refund claim of Rs.28,50,320/- for non-fulfilment of Condition No.2(d) of Notification No.102/2007, dated 14.09.2007 as amended from time to time. The respondent filed appeal before the Commissioner (Appeals)_ By the impugned order, the Commissioner (Appeals) allowed the appeal and observed that lapse of non-endorsement of invoice raised by the consignment agent and the absence of provisions for reimbursement of ST/VAT in the agreement is being set right by the respondent on account of evidence submitted by them. It is further observed that there is no impediment for sanction of refund amount to the appellant subject to verification of evidence submitted by the respondent.
3. Condition No.2(d) of the said notification provides that the importer shall pay on sale of the said goods appropriate sales tax or value added tax, as the case may be. We find that the Boards Circular No.16/2008-Cus. clarified that the Chartered Accountant may certify the claimants financial records under the Companies Act, 1956 or any ST/VAT Act of the State Government or the Income-tax Act, 1961, in order to fulfil the condition that the incidence of duty burden has not been passed on to any other person.
4. The learned Authorised Representative on behalf of the Revenue reiterates the grounds of appeal. She submits that in the instant case, each of the sales invoices made by consignment agents or sales agents does not indicate that the sale is made by him on behalf of the importer Further, the agreement entered into with the consignment or sales agents is silent on terms of VAT.
5. On the other hand, the learned Counsel for the respondent submits that on an identical issue the Tribunal in the case of Commissioner of Customs (Sea-Export), Chennai Vs Shri Ram Impex India (P) Ltd. reported in 2014 (300) E.L.T.126 (Tri.-Chennai) rejected the appeal filed by the Revenue. He submits that they placed the Chartered Accountants Certificate that the incidence of duty was borne by the applicant. He submits that though the agreement is silent regarding the payment of VAT, but, they have filed the CST certificates to prove that they have borne the incidence of VAT/ST.
6. After considering the submissions of both the sides and on perusal of the records, we find that the Tribunal in the case of Shri Ram Impex India (P) Ltd. (supra) rejected the appeal filed by the Revenue. The relevant portion of the said decision is reproduced below:
9. In the grounds of appeal, the Revenue contests the authenticity and bona fide of CA certificate. It is seen from the adjudication order that Boards Circular No.16/2008-Cus., clarifies that a Chartered Accountant is, one who either certifies the claimants financial records under the Companies Act, 1956 or any ST/VAT Act of the State Government or the Income-tax Act, 1961, in order to fulfil the condition that the incident of burden has not been passed on to any other person. We find that Chartered Accountants certificate was accepted by the adjudicating authority in terms of Boards Circular, cannot be discarded without any material and/or basis. Revenue has not placed any material and, therefore, there is no force in such grounds of appeal.
7. In the present case, the learned Authorised Representative for the Revenue disputed the payment of VAT, which was not disclosed in the agreement. We find that the Commissioner (Appeals) proceeded on the basis of Chartered Accountants Certificate that the incidence of duty was borne by the respondent. Revenue has not disputed the authenticity of the Chartered Accountants Certificate in their appeal. It is noted that the Commissioner (Appeals) has already directed the lower authority to verify the evidences submitted by the appellant. In view of that, we do not find any reason to interfere with the order passed by the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected. Stay application is disposed of.
(Dictated and pronounced in open court)
(R. PERIASAMI) (PRADIP KUMAR DAS)
TECHNICAL MEMBER JUDICIAL MEMBER
ksr
DRAFT
Remarks
I
II
III
Date of dictation
03.06.2014
Draft Order - Date of typing
04.06.2014
Fair Order Typing
25.08.2014
Received file from Senior Member only today
Date of number and date of dispatch
26/08/2014
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C/S/40683/2014 and C/40483/2014