TMI Blog2019 (5) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... he claimant of the CENVAT Credit is the person to whom the goods have been sold - In present case the buyer of goods himself is claiming the refund of SAD paid by the person ex-bonding the goods on payment of applicable Customs duty. In his order Commissioner (Appeal) has satisfied himself that no CENVAT Credit has been claimed in respect of the SAD paid - from the order of Commissioner (Appeal) it is evident that he has not absolutely allowed the refund application made but has allowed it subject to the condition of verification of fact of non availment of the CENVAT Credit from the jurisdictional Central Excise Officers. In our view by building this safeguard Commissioner (Appeal) has ensured substantial compliance with the condition specified at 2(b) of the Notification No 102/2007-Cus. Second objection raised by the revenue in their appeal, is with regards to the respondent filing the refund claim, they being not importer - HELD THAT:- In the present case it is not disputed that the burden of the Custom duties as applicable and paid and that of the sales tax/ VAT as applicable and paid has been borne by the Applicant (Respondents). Since they have borne the burden of both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. Para 1 of the Notification is not complied as the goods i.e Barge M V Aquarius was not imported for subsequent sale but was manufacture in Customs Bond by M/s Vijai Marine Services. ii. Condition (b) of the Notification is not satisfied as the invoice dated 15.03.2011 issued by M/s Vijai Marine Services and submitted along with refund application does not specifically indicate that no credit of additional duty of Customs levied under Sub Section (5) of Section 3 of the Customs Tariff Act, 1975 shall be admissible iii. Condition (c) of the Notification is not satisfied as the refund claim has been filed by person other than the importer. 2.4 The show cause notice was adjudicated rejecting the refund claim by the Assistant Commissioner as per the order referred in para 1.2 supra. 2.5 Aggrieved by the order of Assistant Commissioner, respondents preferred and appeal before Commissioner (Appeal) which was allowed as per the order in appeal referred in para 1, supra. 2.6 Aggrieved revenue has filed this appeal. 3.1 In their appeal, revenue has challenged the order of Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 975), when imported into India for subsequent sale, from the whole of the additional duty of customs leviable thereon under sub-section (5) of section 3 of the said Customs Tariff Act (hereinafter referred to as the said additional duty). 2. The exemption contained in this notification shall be given effect if the following conditions are fulfilled : a) the importer of the said goods shall pay all duties, including the said additional duty of customs leviable thereon, as applicable, at the time of importation of the goods; b) the importer, while issuing the invoice for sale of the said goods, shall specifically indicate in the invoice that in respect of the goods covered therein, no credit of the additional duty of customs levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible; c) the importer shall file a claim for refund of the said additional duty of customs paid on the imported goods with the jurisdictional customs officer; d) the importer shall pay on sale of the said goods, appropriate sales tax or value added tax, as the case may be; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs Duties and the VAT have been paid by M/s Vijai Marine Services, however, the same has been borne by M/s Bhavana Earthmovers. The letter further states that M/s Vijai Marine Services, the Manufacturer Importer, have no objection if the refund amount of Special Additional Duty is paid to M/s Bhavana Earthmovers. In any event this fact that the Appellant who purchased the Barge M V Aquarius did not claim CENVAT Credit in respect of the Special Additional Duty (SAD) paid in terms of the provisions of Section 3(5) of the Customs Tariff Act, 1975, for the clearance of the said Barge for Home Consumption vide Bill of Entry No 06/03.03.2011 could be verified from the jurisdictional Central Excise Authorities. This is only a deficiency and would not disentitle the Appellant to get refund. 5.5 Thus from the order of Commissioner (Appeal) it is evident that he has not absolutely allowed the refund application made but has allowed it subject to the condition of verification of fact of non availment of the CENVAT Credit from the jurisdictional Central Excise Officers. In our view by building this safeguard Commissioner (Appeal) has ensured substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a person other than the importer shall be construed as the date of purchase of goods by the said person. The law is thus clear that the refund accrues on an Importer can be claimed by anyone who has borne the payment sought to ne refunded. 5.7 In case of Mafatlal Industries [1997 (89) ELT 247 (SC)] Hon ble Apex Court has held as follows: 89.A major attack is mounted by the learned Counsel for petitioners-appellants on Section 11B and its allied provisions on the ground that real purpose behind them was not to benefit the consumers by refusing refund to manufacturers (on the ground of passing on the burden) but only to enable the Government to retain the illegally collected taxes. It is suggested that the creation of the Consumer Welfare Fund is a mere pretence and not an honest exercise. By reading the Rules framed under Section 12D, it is pointed out, even a consumer, who has really borne the burden of tax and is in a position to establish that fact, is yet not entitled to apply for refund of the duty since the Rules do not provide for such a situation. The Rules contemplate only grants being made to Consumer Welfare Societies. Even in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (2) of Section 11B does provide for the purchaser of goods applying for and obtaining the refund where he can satisfy that the burden of the duty has been borne by him alone. Such a person can apply within six months of his purchase as provided in Clause (e) of Explanation-B appended to Section 11B. It is, therefore, not correct to contend that the impugned provisions do not provide for refunding the tax collected contrary to law to the person really entitled thereto. A practical difficulty is pointed out in this behalf by the learned Counsel for appellants-petitioners : it is pointed out that the manufacturer would have paid the duty at the place of removal or clearance of the said goods but the sale may have taken place elsewhere; if the purchaser wants to apply for refund - it is submitted - he has to go to the place where the duty has been paid by the manufacturer and apply there. It is also pointed out that purchasers may be spread all over India and it is not convenient or practicable for all of them to go to the place of removal of goods and apply for refund. True it is that there is this practical inconvenience but it must also be remembered that such clai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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