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TMI Blog2021 (4) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... he department that with regard to 5 Bills of Entry there is difference in the name of importer in the Bill of Entry and the corresponding sale invoices. The department was of the view that the appellant is not eligible for refund as the conditions stipulated in Notification No.102/2007-Cus. is not fulfilled; that only importer is eligible to claim refund of 4% SAD paid on imported goods and since claimant is not the importer of the goods, the refund ought not to have been sanctioned. Show cause notice dt. 07.09.2017 was issued proposing to recover the erroneously sanctioned refund of Rs. 9,88,526/- along with interest. After due process of law, the original authority confirmed the demand of 4% SAD amounting to Rs. 9,88,526/- along with inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per clause 2 (c) of the notification, the "importer‟ has to file claim for refund of SAD. He adverted to Section 2 (26) of the Customs Act, 1962 which defines the term "importer". Prior to 2017, the definition reads as under : (26) "importer", in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner, or any person holding himself out to be the importer; 2.3 On plain reading of the above, it is clear that the definition of importer is an inclusive definition and that importer includes any person holding themselves out to be the importer after the physical importation of the goods but before the clearance for home consumption. 2.4 In the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per Customs Act, 1962 was shifted from Doosan Infracore India Pvt Ltd. to the Appellant due to the slump sale agreement. 2.7 The Appellant being the rightful owner was supposed to clear the goods from the warehouse by payment of duty. However, the Appellant awaited Import Export Code from the authorities and due to business needs, Appellant got the goods cleared with the help of Doosan Infracore India Pvt Ltd. Doosan Infracore India Pvt Ltd, quoted its IEC, paid the duty and cleared the goods on the directions of and on behalf of the Appellant. Subsequently, Appellant reimbursed the duty to Doosan Infracore India Pvt Ltd. 2.8 The Appellant submits that, from the above it is very clear that, the Appellant, cleared the goods for home cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misused the IEC code of Doosan Infracore India Pvt.Ltd. cannot claim refund and therefore the order passed for recovering the erroneous refund is legal and proper. She relied upon the following decisions : (1) Seven Hills Solvents Pvt. Ltd. Vs CCT Visakhapatnam 2018-TIOL2713-CESTAT-HYD (2) Suri Devices India, ST Enterprise Vs CC Mumbai - 2014-TIOL-2928-CESTAT-MUM (3) Andhra Pradesh Granite Midwest Pvt.Ltd. Vs CCT, GST Guntur - 2020-TIOL-746-CESTAT Hyderabad 4. Heard both sides. 5. The main allegation raised against the appellant is that they are not the importer of the goods and therefore not eligible for refund of SAD as per the conditions stated in Notification No.102/2007. For better appreciation, clause 2 of the said notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant. From the definition, it can be seen that it is an inclusive definition wherein the importer includes any owner or person holding himself out to be the importer. The appellant has entered into slump sale agreement with Doosan Infracore India Pvt.Ltd. on 1.4.2015 for sale of Excavator Division. The definition of "Acquired Assets‟ as per Section 1 of the said agreement, is as under : "Acquired assets" means all of the assets, properties and rights of Seller owned or used by Seller in connection with the Business, as such assets, properties and rights exist at the Closing, including without limitation: (i) cash and cash equivalents in an amount to be determined by the parties, (ii) accounts or notes receivable of the Business, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be in the shoes of a person holding himself out to be the importer. Though IEC of Doosan Infracore India Pvt.Ltd. was used for clearance of the goods, it cannot be said that appellant is a total stranger to Doosan Infracore India Pvt.Ltd. So also, it cannot be said that the appellant does not have any ownership over the goods. The agreement is sufficient evidence to satisfy that the ownership of the goods was transferred from Doosan Infracore India Pvt.Ltd. to the appellant herein. This being the circumstances, the refund claim filed by the appellant would satisfy the condition prescribed in clause 2(c) of the Notification No.102/2007. Ld. Counsel has relied upon the decision in the case of TATA Hitachi Construction Machinery Co. Ltd. V ..... X X X X Extracts X X X X X X X X Extracts X X X X
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