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2022 (6) TMI 1091 - AT - CustomsRefusal of SAD - rejection of refund pertaining to 6 bills of entry on the sole ground that Audit objected those 6 Bills of entry as allegedly not tallying with the sale invoices - HELD THAT:- The goods imported and goods sold, though are of different brand names are one and same which is verifiable from the item code and item description and such infraction of procedural technically cannot defeat the very object and purpose of exemption Notification [reliance was placed on the judgment of Hon'ble Supreme Court in MANGALORE CHEMICALS & FERTILIZERS LTD. VERSUS DEPUTY COMMISSIONER [1991 (8) TMI 83 - SUPREME COURT]. Further, he had asked the adjudicating authority to verify the claim of refund with reference to requisite documents and pass an appropriate order. With this limited purpose matter went back to the adjudicating authority once again, whose primary duty was to verify if through documentary proof concerning import and sale of imported goods in the local market could be established and then sanction the refund as per Notification No. 102/2007. However, he had exceeded his jurisdiction in starting a de novo proceeding - Though Appellant claims that even there is no change of description of the goods imported and goods sold in the local market, which it has substantiated demonstratively during hearing of this case through documents annexed to the appeal memo from page 80 to page 95 and beyond. Further, as could be noticed from the adjudicating authority’s order that unless imported goods are sold in the same condition, benefit of exemption Notification would be denied to the importer and change in the nature of goods would disentitle the importer from seeking SAD refund. On perusal of Notification No. 102/2007 no such conditionality is noticeable. Refund of SAD is primarily governed by Notification No. 102/2007 and guided by its clarificatory Circular issued from time to time. Learned Commissioner (Appeals) in the first round of litigation had already given a finding that claim of refund of applicant survives and thereafter review of the said order by the adjudicating authority in the limited remand for verification of documents so as to ascertain that the same is in conformity to law, is beyond the power of the adjudicating authority, as it can only be exercised by the appellate authority. Judicial president has been set by the Hon'ble Madras High Court in the case of JOHNSON LIFTS PVT. LTD. VERSUS ASSTT. COMMR. OF CUS. (REFUNDS) , CHENNAI [2021 (2) TMI 401 - MADRAS HIGH COURT] in which it was clearly stipulated that the respondent-department is bound to accept the description of goods in the import documents as well as sale invoice to be one and the same, on the strength of the certificate/correlation statement issued by the Statutory Auditor (Chartered Accountant). Appeal allowed.
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