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2024 (2) TMI 1144 - CESTAT CHENNAIDenial of refund of SAD - goods supplied under sales invoice not contain rubber stamp and not computer printed - non-submission of the Chartered Accountant’s certificate - whether the burden of 4% SAD has been passed on by the importer or not - mandatory declaration required under Condition 2(b) of Notification No. 102/2007-Cus - HELD THAT:- The allegation that the stamping was not done in the invoices issued to the buyer has been examined by the Larger Bench of the Tribunal in the case of Chowgule & Company Pvt. Ltd. Vs. Commissioner of Customs [2014 (8) TMI 214 - CESTAT MUMBAI (LB)] wherein it was has held in that case that non-declaration of duty in the invoice issued to the buyer itself is an affirmation that no credit would be available. Appellant has obtained the Chartered Accountant’s certificate and has submitted it before the Commissioner (Appeals). The Commissioner (Appeals) has held that non-submission of the Chartered Accountant’s certificate before the original authority is not a curable defect and has rejected the claim. Board vide instruction circular issued from F.No. 275/34/2006- CX.8A, has stated that Commissioner (Appeals) while deciding the appeals filed before him u/s 128A of the Customs Act, 1962, shall, after making such further enquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against. He can direct the production of any document, or the examination of any witness to enable him dispose of the appeal. In the circumstances it was not proper of him to have rejected the appeal without examining it on merits and after issuing a proper speaking order. Thus, it is proper to remand the matter back to the Original Authority who shall consider the Chartered Accountant’s certificate apart from the other documents already submitted by the Appellant at the time of filing the refund claim. He should also verify the invoices to check that they don’t indicate the payment of SAD. If so he shall accept the same in affirmation that no credit would be available, in line with the judgment of the Larger Bench in Chowgule & Company (supra). All other issues are left open. He shall point out discrepancies in writing, if any to the appellant and afford a reasonable opportunity of hearing to them for advancing their claim. The impugned order is set aside on the above terms and the appeal is disposed of accordingly.
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