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2019 (5) TMI 923 - AT - CustomsRefund of SAD - N/N. 102/2007-Cus dated 14.09.2007 - rejection on the ground that Para 1 of the Notification is not complied as the goods i.e Barge M V Aquarius was not imported for subsequent sale but was manufacture in Customs Bond by M/s Vijai Marine Services - rejection also on the ground that credit availed - rejection also on the ground that Condition (c) of the Notification is not satisfied as the refund claim has been filed by person other than the importer. HELD THAT:- Admittedly in the present case, the invoice dated 15.03.2011 issued by the M/s Vijai Marine Services do not carry the endorsement as specified by condition 2(b) of the said Notification. The purpose of such endorsement on the invoice, is only to prevent the buyer of goods from claiming the CENVAT Credit of the Special Additional Duty (SAD) of Customs levied under Section 3(5) of Customs Tariff Act, 1975, for which this refund application has been filed. This requirement becomes more relevant if the person claiming the refund as per this notification is importer and the claimant of the CENVAT Credit is the person to whom the goods have been sold - In present case the buyer of goods himself is claiming the refund of SAD paid by the person ex-bonding the goods on payment of applicable Customs duty. In his order Commissioner (Appeal) has satisfied himself that no CENVAT Credit has been claimed in respect of the SAD paid - from the order of Commissioner (Appeal) it is evident that he has not absolutely allowed the refund application made but has allowed it subject to the condition of verification of fact of non availment of the CENVAT Credit from the jurisdictional Central Excise Officers. In our view by building this safeguard Commissioner (Appeal) has ensured substantial compliance with the condition specified at 2(b) of the Notification No 102/2007-Cus. Second objection raised by the revenue in their appeal, is with regards to the respondent filing the refund claim, they being not importer - HELD THAT:- In the present case it is not disputed that the burden of the Custom duties as applicable and paid and that of the sales tax/ VAT as applicable and paid has been borne by the Applicant (Respondents). Since they have borne the burden of both the Customs Duty and Sales Tax/ VAT they have filed this refund claim. There are no infirmity in the orders of Commissioner (Appeals) - appeal dismissed - decided against Revenue.
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