TMI Blog2013 (11) TMI 1474X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant failed to make a declaration it cannot be said to be a technical lapse where as breach of compliance to the Notification No. 102/2007 debarrs to the benefit granted by that. The spirit of the declaration can be appreciated from the object it is expected to achieve. The declaration envisaged that expression thereof on the invoice shall make the buyer beware that no credit of additional duty of customs shall be admissible and that shall invite attention of all user of the said document. Therefore, such a precaution cannot be interpreted to be a technicality of the notification. It is a mandatory requirement and breach thereof shall disentitle the appellant to the benefit of refund of additional duty of customs. Irrespective of the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1975 shall be admissible; 2. While 9 appeals were disposed by ld. Appellate Authority by common Order-in-Appeal No. CCA/I G/102-110/2010, dated 26-7-2010 the other appeal was disposed by different order dated 24-3-2011. However all the appeals before ld. Commissioner (Appeals) resulted with dismissal denying refund of additional customs duty. 3.1 Ld. Counsel for the appellant submitted that different amounts of refund are involved in all the 10 appeals while the issue is same. The appellant being a trader of medicine and paid sales tax against sale of such goods claimed refund of additional duty of customs paid at the time of import as such refund was due to the appellant in terms of the aforesaid notification. There is no dispute of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Tariff Act, 1975. 3.4 It was further submitted that the appellant cannot be deprived of the refund when all the documents were furnished before ld. Adjudicating Authority and notification dated 27-2-2010 warranted liberal interpretation in view of compliance available at page 46 of the appeal folder supporting the refund application. But those were ignored. The appellant gets support for its contention from the decision of the Tribunal in the case of Equinox Solution Ltd. v. CCE - 2011 (272) E.L.T. 310 (Tri.-Mumbai). According to appellant this decision is applicable on the ground that commercial invoice establishes that buyer cannot take credit of the special additional customs duty and that is sufficient compliance without the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on the invoices issued was mandatory and the trader appellant was not immune from compliance to the said mandatory requirement of the notification. There is nothing in the notification to discriminate a manufacturer from a trader when the importer of the goods claiming refund has an obligation under law to be declare on the invoice itself that the goods sold under that invoice shall not enjoy credit of additional duty of customs levied under Section 3(5) of Customs Tariff Act, 1975. 6.2 A Notification benefit being given at the cost of people of India the condition cannot be said to be directory without being mandatory. Every benefit through notification is granted with conditions, stipulations and limitations to safeguard interest o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of lateral notification operating retrospectively. Accordingly appellant fails gain from the Judgment of Apex Court in Malwas Industries case (supra). 7. We have perused the decision cited in Equinox s case (supra). We are not satisfied that the commercial invoice need not carry declaration. As the issue involved in this case is not unjust enrichment, the other citations relied by appellant is not profitable. When the law is well clear that invoices issued should carry the declaration as mandatory condition to get refund, there is no discretion permitted by law. The appellant substantially lose its appeal on the ground of failure to comply to the mandatory requirement of the Notification for which all the appeals are dismissed. (Pronou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
