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2019 (10) TMI 420

..... struction of buildings and selling the same to the various buyers of unit in the said building, being dwelling units - rejection also on the ground that the adjudicator observed that the burden of passing on of SAD is not clear from the facts on record - rejection also on the ground of non submission of sale invoice for resale of the imported goods. HELD THAT:- 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 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 .....

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..... From the order in original rejecting the refund of SAD to the respondent importer, it appears that two reasons have been assigned for rejection of the refund claim, under notification No. 102/97 - Cus. The first reason given is that the goods were imported 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/bu .....

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..... D/SAD has not been passed on by the importer/buyer and accordingly the requirement of unjust enrichment is fulfilled. Further the chart was also filed, showing correlation of the goods in question and it s utilisation in different dwellings 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 .....

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..... mant dealer is not supposed to issue cenvatable tax invoice. Further as regards the issue of unjust enrichment, the importer, certified by way of self certification and also the certificate of chartered accountant, that the burden of 4% 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 i .....

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..... ite scheme in VAT Act. While complying with one legislation, the appellant cannot be disadvantaged of the benefit which is otherwise available to them by another legislation. Thus rejecting the refund claim only on the grounds 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 certifi .....

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..... se of captive consumption and not the case of the re-sale of the imported goods. Further the importer is required to state on the sale invoice that no credit of additional duty of customs levied 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 Commi .....

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