TMI Blog2019 (10) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) was justified in holding that in case of imported goods being used for construction of an immovable property, being a case of deemed sale or passing of the property in goods used in construction, no separate tax invoice needs to be issued, as the conveyance is done through deed of sale, duly registered before the competent authority. That in such cases, the requirement of invoice for the sale is substituted by the deed of conveyance. Secondly, there is no case made out of the imported goods being consumed. It is not the case of revenue that the goods are in the nature of fuel or pesticides (consumables), etc., which are not transferable after its use in the civil construction - As there is no tax invoice or any other invoice, hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted and utilized in civil construction, as the respondent assessee is engaged in construction of buildings and selling the same to the various buyers of unit in the said building, being dwelling units. The second reason for rejection is that the adjudicator observed that the burden of passing on of SAD is not clear from the facts on record. The 3rd reason is non submission of sale invoice for resale of the imported goods. 3. From the facts on record, it appears that the respondent importer/builder filed the refund claim along with the documents namely TR 6 challans evidencing payment of SAD along with corresponding original /duplicate bill of entry, Certificate from chartered accountant certifying the final accounts for corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs units, as sold to different buyers. Further reference was made to Board Circular No. 6/2008 and 16/2008 which clarify that considering the volume of transactions and the documents involved from import to sale, it was felt that in order to fulfil the requirements of unjust enrichment, it would be expedient to allow the importer to furnish a certificate from his auditor/chartered accountant, who certify the annual accounts of the importer. That the burden of 4% CVD had not been passed on by the importer to the buyer. The Board vide the said circulars also required the importer to make a self declaration along with the refund claim to the effect that the burden of 4% CVD had not been passed on by the importer to any other person. The Adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SAD have not been passed on. It was further observed that the amount of SAD is shown in the balance-sheet as an amount recoverable from customs, and have not been debited to the profit and loss account. Further it was observed that the condition No. e(ii)of para 2 of the Notification No. 102/2007 Cus, is satisfied as the immovable property so constructed have been transferred by way of conveyance deed and sales taxes paid under composition scheme, wherein no tax invoices need to be issued. Further Reliance is placed by the learned Commissioner (Appeals) on the ruling of this Tribunal. In Lodha Healthy Construction Developers Pvt. Ltd Vs Commissioner of Central Excise, being final order No. C/30907/2016 SM dated, 07.03.2017, wherein this T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds that appellants have not produced invoices to substantiate sale of the imported goods would be putting the appellant to disadvantage merely because they have complied with the VAT law. As per the Circular No.6/2008-Cus., dated 28-4-2008, in para 5.1 the Board has clarified that the certificate issued by an Auditor/Chartered Accountant who is also a person who certifies the annual statements of the company can issue a certificate for correlating the VAT as well as the SAD paid. The appellant has produced a such certificate. In the present case, the non-issuance of invoices was not a choice made by the appellant. It was a compulsion while opting for payment of composite scheme under VAT law. The second condition is that the appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evied under subsection (5) of section 3 of the customs tariff Act shall be admissible, further the requirement of unjust enrichment is not satisfied. Further 1st appellate authority have erred in accepting the difficulty, in issue of tax invoices under the VAT consumption scheme of the state government. Reliance is also placed on the rulings in Commissioner of C. Ex., Vs. Dilip Kumar 2016 (339) E.L.T. A146 and Eagle Flask Industries Ltd. 2004 (171) ELT 296. 6. Having considered the rival contentions, I find that in the facts and circumstances, the Commissioner (Appeals) was justified in holding that in case of imported goods being used for construction of an immovable property, being a case of deemed sale or passing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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