TMI Blog2010 (1) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant gets exemption from SAD on sale of the machine in terms of notification No. 102/2007-Cus., dated 14-9-2007, filed refund claiming refund of SAD amounting to Rs. 21,41,757/- that the SCN dated 4-6-2009 was issued directing the appellant to show cause as to why the refund should not be rejected on the following grounds - (i) that the subject goods when imported into India on 20-4-2007, were not imported for subsequent sale, (ii) that the appellant did not pay any customs duty on importation on goods but was forced to pay the same including the special additional duty with interest due to his failure to operate his plant and fulfil the export obligations, (iii) that the incidence of customs duty including special additional duty and interest on delayed payment was not borne by the appellant but by Sujata, as per ledger account extract of the appellant, (iv) that the remarks on the invoice about non-admissibility of special additional duty credit to the buyer appears on the invoice but, however, it is not understood whether the copy of the said invoice is of buyer s copy or of the seller s copy, because it appears to be printed on letter head of the appellant-company wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be read in manner so as to defeat the object of the notification and the expression for use appearing in the said notification has to be interpreted or must mean intended for use and does not imply goods actually used or goods used and the appellant relies on the decision of the Tribunal Bangalore in the case of Ramsons Garments Finishing Equipments Pvt. Ltd v. CCE, Bangalore [2007 (211) E.L.T. 44]; (iv) that as per the settled principle of law, the debit/credit notes is a routine practice and the department has not adduced any evidence which could lead that the debit/credit notes are not genuine; (v) that though the financial accounts of their both the companies were scrutinized at the time of PH as evidenced from the record of PH, it appears that the Assistant Commissioner has overlooked the above aspect and the appellant relies on the decision of the Rajasthan High Court in the case of UOI v. A.K. Spintex Ltd. [2009 (234) E.L.T. 41]; (vi) that the benefits granted by Notification No. 102/2007-Cus. which have not been claimed by the appellant at the time of initial importation of the subject goods, should not become hurdle while claiming the said benefits a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed to pay the SAD as the sale transaction had taken place, the payment of the SAD has been honoured at the behest of the Central Excise department; (xiii) that Notification No. 102/2007-Cus., dated 14-9-2007 is a conditional exemption and the appellant has fulfilled all the conditions enlisted in clause (a) to (d) i.e. they have paid appropriate duties of customs including the SAD, specifically indicated in the invoice that no credit of additional duty of customs paid would be admissible, they filed refund claim with the concerned authorities, they have paid appropriate amount of VAT after effecting the sale of said goods; (xiv) that they have furnished/produced the copies of relevant documents viz. TR6 challan duly countersigned by the Supdt. Range Sawantwadi, the invoice of sale of imported goods and receipted copy of the challan evidencing payment of VAT which is honoured. 3. PH was held on 5-1-2010 at 11.30 AM. Shri Ashish Ranade, Company Law Secretary and Director and P.S. Salian, Joint Director (Exports Imports) of the appellant-company appeared before me at 11.30 AM. None appealed from Department s side despite intimation. In addition to reiterating the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct goods were imported for excavation in the mining but due to the global recession, they could not undertake the work; that since the goods were not put into use, they decided to transfer the same for consideration to their sister concern i.e. Sujata. Further the appellant claims that after import of the goods under notification No. 52/2003, the appellant was not prevented to sell the same subsequently after paying requisite customs duties, because the words used in Customs Notification No. 52/2003 are for use which does not imply that the goods should be actually used and to support his contention, the appellant relies on the Hon ble Tribunals decision in the case of M/s. Ramsons Garments Finishing Equipments Pvt. Ltd. v. CCE, Bangalore (supra). In the above case, the appellant imported machineries/equipments in terms of Notification No. 20/99-Cus., dated 28-2-1999, as amended, availing the benefit at concessional rate of duty on the ground that the same are required for textile industry/for use in textile industry; that out of the machineries imported, few of them were sold to hospitals dry cleaners and the department proceeded against the appellant on the ground that the mach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulars such as, value, duties, name of the machine etc. are available. Further it is accepted that the invoice contains the declaration that the SAD leviable under Section 3(5) of the Customs Act is not available as credit. In this regard, the Assistant Commissioner s conclusion with regard to invoice at page 8 is to be mentioned. At page 8 in the last para, he has concluded as under- However, on going through the invoice No. DMPL/IMM/2008 dated 31-3-2008 filed along with refund claim, I have seen that the description of goods, quantity, unit price, total price + customs duties + interest and VAT has been incorporated . 4.2.1 From the conclusion, it is very clear that the invoice, though does not bear the serial number, contains all the required particulars. I have seen the invoice which contains all the required particulars as observed by the Assistant Commissioner. Therefore the format of the invoice cannot come in the way of denying the refund claim in the instant case. 4.3.0 Another objection under which the refund claim rejected was that the duty was not borne by the appellant but by a third person i.e. Sujata. In this regard, the appellant claims that raising credit/de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard the following decisions relied upon by the appellant also support that when credit note from the seller and debit note from the buyer are issued subsequent to the sale, the duty incident has not been passed on to the buyer :- M/s. OM Pharmaceutical Ltd. v. CCE, Bangalore, 2008 (232) E.L.T. 309, M/s. Jyoti Ltd. v. CCE, Vadodara, 2008 (232) E.L.T. 832 , CCE v. U.T. Ltd., 2008 (232) E.L.T. 199 and Radiant Engineers v. CCE, Pune-I, 2008 (232) E.L.T. 701. Under the above circumstances, it is not known on what grounds the refund claim could be rejected. It is immaterial that whether the duty was borne by the appellant or by the buyer. But the allegation that the duties were borne by the third party were not proved with documentary evidence as contended by the appellant. In fact, the Assistant Commissioner himself has concluded (4.3.0 supra) that the noticee has paid customs duties and interest vide TR6 challan. Even otherwise, it is a matter of common knowledge that in the case of indirect taxes, cost and duty elements are borne by the buyer only though administratively they are collected from the seller. To get the refund in the instant case the conditions to be fulfilled are that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SAD. Further the State Govt. authority was also after them for payment of VAT. Under the above circumstances, they took one year for making payment of VAT. However it is immaterial for the department whether the VAT was paid at the time of sale or at a later period. It is the look out of the State Government. What is required for the department is that at the time of claiming refund of SAD, the VAT/sales tax should have been paid. That is not under dispute. 5.0 From the above discussion, it could be seen that the appellant has fulfilled the conditions required in terms of Notification No. 102/2007. Therefore, some procedural aspects such as, the invoice does not contain serial number, the appellant has not produced duplicate copy of the invoice along with refund claim, since there was no mention of the same on the invoice in question etc. should not come in the way of giving substantial benefit i.e. refund claim. In this regard, the reliance placed by the appellant on the decisions mentioned at para 2 (viii) also supports the contentions of the appellant. Therefore, I hold that the appellant is entitled for refund, since there is no dispute with regard to payments of SAD and VAT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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