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2016 (4) TMI 487 - CESTAT CHENNAI

2016 (4) TMI 487 - CESTAT CHENNAI - TMI - Refund claim of 5% additional duty - levied under sub-section 5 of section 3 of Customs Tariff Act, 1985 - Goods imported and cleared in terms of Notification No. 102/2007 dated 14.09.2007 - Held that:- the Ld. Commissioner (Appeals) in his impugned order has not discussed the merits of the case and remand the matter back to the lower appellate authority, which is beyond the jurisdiction w.e.f. 11.05.2001 under Finance Act, 2001 as observed by the Tribun .....

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annan, Advocate For the Respondent : Shri K.P. Muralidharan, AC (AR) ORDER M/s. K.I. International Ltd., Chennai, filed 5% additional duty refund application in respect of the goods imported and cleared in terms of Notification No. 102/2007 dated 14.09.2007. The Dy. Commissioner of Customs (Refunds) after verification of all the documents sanctioned the refund vide Order-in-Original No. 12123/2010 dated 31.05.2010. Against this, the department filed appeal before the Commissioner (Appeals) on th .....

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ellant Company sought adjournment on account of personal inconvenience and prayed for hearing on some other day. The Ld. Commissioner (appeals) ignoring the request for adjournment and proceeded to pass the order on the basis of the case records. The relevant portion of the Order-in-Appeal is reproduced as under:- 3. A personal hearing was offered on 21.8.2012 and was represented by Shri. Suman Kumar Kujur, Deputy Commissioner on behalf of the appellant and none on behalf of the respondent. The .....

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pt to allow the department appeal back to the LAA for considering the departmental plea by verifying with the sales invoices from the ultimate buyers. 5. However, the appellant is directed to produce all the required documents to the LAA, who can verify the same with the original records from which they found out the discrepancy and if found correct impugned order by the LAA stands good. Other wise the LAA may pass a fresh order as per law after following the principles of natural justice. 6. In .....

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he Order-in-Original dated 31.05.2010, wherein the Dy. Commissioner of Customs (Refunds) before passing the order sanctioning the refund has discussed the entire facts and the legal provisions in detail. The relevant portion of the said order is reproduced as under:- The Importer has submitted all the TR-6 Challans along with the respective/Bills of Entry. Thus the condition 2 (a) as envisaged in the said notification is fulfilled. All the sales invoices submitted are indicating, In respect of .....

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e of payment of the said Additional Duty of customs. THUS the condition 2(c) of the said notification is fulfilled. The Importer has submitted the original sale invoices and all CST/VAT payment challan in support of their claim. The Invoices are indicating the charging of sales tax. They have produced document in support that the CST/VAT has been paid to the respective Sales Tax Authorities. The Chartered Accountant has co-related the claimants import documents with sales invoices of the said go .....

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the case of CC (Imports), Mumbai Vs. Clestra Modular Systems Pvt. Ltd. - 2010 (249) ELT 152 (Tri.-Mum), wherein the Co-ordinate Bench has observed that the Commissioner (Appeals) has no power to remand the case back to the original authority w.e.f. 11.05.2001 under Finance Act, 2001. He also relied on the LB decision of the Tribunal in the case of Chowgule and Company Pvt. Ltd. Vs. CCE 2014 (306) ELT 326 (Tri.-LB). He further submits that the decision of the LB is squarely applicable and prayed .....

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es of Natural Justice is not correct and their claim that the order passed by the Ld. Commissioner is without proper jurisdiction. Hence, he prays for rejection of the appeal filed by the assessee and to uphold the order of the Ld. Commissioner (Appeals) 4. Heard both sides and on perusal of records I find that the issue lies in a narrow compass regarding claim of refund of additional duty of customs levied under sub-section 5 of section 3 of Customs Tariff Act, 1985. On going through the Order- .....

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will not enrich the claimant unjustly. The claimant has fulfilled all the conditions of Notification No. 102/2007-Cus. Dated 14.09.2007 as amended by Notification No. 93/2008-Cus. Dated 01.08.2008 read with the Board s circular No. 6/2008-Cus. Dated 28.04.2008 and 16/2008-Cus. Dated 13.10.2008 and hence the refund of 4% Additional duty of customs so paid to the tune of ₹ 48,25,743/- is admissible and in order. On going through the statement of facts and grounds of appeal of the Revenue be .....

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