TMI Blog2014 (8) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... e benefit of exemption under Notification 102/2007-Cus, notwithstanding the fact that he made no endorsement that "credit of duty is not admissible" on the commercial invoices, subject to the satisfaction of the other conditions stipulated therein. The reference is returned to the referring bench for further action as necessary. - C/18 to 20/2010 - Misc. Order No. M/1305/2014-WZB/C-I(CSTB) - Dated:- 24-6-2014 - S S Kang, Ashok Jindal And P R Chandrasekharan, JJ. For the Appellant : Shri Bharat Raichandani, Adv, with Shri C S Biradar, Adv For the Respondent : Shri D Nagvenkar, Addl. Commissioner (AR) PER : P R Chandrasekharan The reference made to the Larger Bench reads as follows : Whether to avail the benefit of Notification No. 102/07, the condition 2(b) of the Notification is mandatory for compliance being a trader who cleared the goods on the strength of commercial invoice. 2. The reference has been made in the facts and circumstances detailed below : 2.1. The appellant, a trade, imported goods on which the discharged special additional duty of customs under Section 3(5) of the Customs Tariff Act, 1975. The said goods were sold on payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f that the conditions referred to in para 2 above, are fulfilled. It is in the context of condition stipulated under clause (b) of para 2 of the notification, the issue has arisen as to whether refund of SAD can be allowed when no endorsement was made on the commercial invoices as stipulated in paragraph 2 (b) while all other conditions stipulated in the notification stood satisfied. 2.2. The above issue had come up for consideration earlier before this Tribunal in the case of Equinox Solution Ltd. vs. Commissioner of Customs (Import) 2011 (272) ELT 310 and Nova Nordisk India Pvt. Ltd. vs. Commissioner of Customs (ACC Import), Mumbai 2013 (292) ELT 252. In these two decisions, it was held that in where the trader issues a commercial invoice without making the endorsement as stipulated in paragraph 2(b) of the notification and quantum of SAD paid is not specifically mentioned in the invoices, SAD paid should not be denied merely because the required endorsement was not made as that would constitute only a technical infraction. The purpose of clause (b) of para 2 of the Notification is to prevent availing of double benefit, i.e., the buyer of the goods takes the credit of SA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s double levy, relief has been provided under Notification 102/2007 by way of a refund mechanism. It is not in dispute that the appellant trader, while selling the imported goods has discharged sales tax/VAT liability and, therefore, if he is made to bear the burden of SAD also, it would defeat the very object of the levy. Reliance is placed on the decision of the hon'ble Apex Court in the case of Mangalore Chemicals Fertilizers Ltd. vs. Dy. Commissioner 1991 (55) ELT 437 and Bombay Chemical Pvt. Ltd. vs. Collector of Central Excise, Bombay 1995 (77) ELT 3 wherein it has been held that an exemption, cannot be denied when there is an infraction of a procedural condition of a technical nature. Therefore, a distinction has to be drawn between a procedural condition and a substantive condition. Once this distinction is drawn, the benefit of exemption should not be denied merely on account of an infraction of a procedural condition. Reliance is also placed on the - statutory principle that a provision enacted for the benefit of the assesses should be so construed which enables the assessee to gets the benefit. Accordingly, it is prayed that in a case where CENVAT credit could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a legitimate demand for a level playing field. The new levy would not apply to crude oil, newsprint, capital goods sector under a special tariff regime or goods which are subjected so additional duties of excise in lieu of sales tax, gold and silver imported by passengers or other nominated agencies and life saving drugs mat are free from customs duties. The levy would also not apply to goods which are currently exempt both from basic and additional duties of customs. Similarly, goods imported for subsequent trading have also been left out of its purview, since they bear the burden of Sales, tax at the lime of first, sale. The new levy will also not apply to input imported under export-promotion schemes. In addition, there may be other sectors eligible for exemptions. These would be examined and if considered appropriate notified separately. The rate of levy was subsequently reduced to 4% All goods imported for subsequent sale were initially exempted from levy of SAD vide Sl. No. 11 of the Table Annexed to notification No. 29/98-Cus dated 2-6-1998. The said exemption underwent many changes over the years and the present exemption is contained in notification 102/2007-Cus whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reof if the subject falls within the scope of the exemption. It was also held that, the need to resort to any interpretative process would arise only where the meaning is not manifest on the plain words of the statute. As held by the hon'ble Apex Court in the New India Sugar Mills Ltd. vs. Commissioner of Sales Tax, Bihar [AIR 1963 SC 1207] - it is a recognized rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they best harmonize with the object of the statute, and which effectuate the object of the Legislature . Applying the ratio of these decisions to the facts of the case before us, it can be seen that the condition relating to endorsement on the invoice was merely a procedural one and the purpose and object of such an endorsement could be achieved when the duty element itself was not specified in the invoice. Since the object and purpose of the condition is achieved by non-specification of the duty element the mere non-making of the endorsement could not have undermined the purpose of the exemption. Thus we concur with the view taken by this Tribunal in the cases of Equinox Solution Ltd. and Nova Nordisk In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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