TMI Blog2022 (5) TMI 1108X X X X Extracts X X X X X X X X Extracts X X X X ..... t of this tribunal in the case of CHOWGULE COMPANY PVT LTD VERSUS COMMISSIONER OF CUSTOMS CENTRAL EXCISE [ 2014 (8) TMI 214 - CESTAT MUMBAI (LB)] has dealt with the same issue where it was held that even if no declaration is made for that reason the refund cannot be denied - The aforesaid judgments on both the issue were placed before the commissioner (Appeals). However, despite refering the said judgments, the matter was once again remanded to the adjudicating authority which was absolutely not warranted on the part of the Commissioner (Appeals). Learned Commissioner (Appeals) should have decided finally as there was nothing left for the adjudicating authority to decide further. The appellant is clearly entitled for the refund - appeal allowed - decided in favor of appellant. - CUSTOM Appeal No. 10125 of 2021 - A /10535/2022 - Dated:- 20-5-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL), Shri R.S Sharma, Advocate for the Appellant Shri. G. Kirupanandan, Superintendent (Authorized Representative) for the Respondent ORDER This appeal is directed against order in appeal dated 04.11.2020 passed by the Commissioner (Appeals) Ahmedabad, Whereby the Learned Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter. Therefore, he prays that this tribunal exercising the power vested therein may decide the appeal finally. 3. Shri G. Kirupanandan, Superintendent (Authorized representative) appearing on behalf of the revenue reiterates the findings of the impugned order. 4. I have carefully considered the submissions made by both the sides and perused the records. I find that the matter was twice decided by the adjudicating authority. The only ground for rejection of refund given by the adjudicating authority is (i) that the amount of SAD paid by the appellant by way of debiting in MEIS scrip (ii) No declaration was found on the sale invoice regarding non admissibility of cenvat credit of SAD. As regard the issue that whether the refund is admissible when an assessee paid the SAD by debiting MEIS has been settled in the judgment of ALLEN DIESELS INDIA PVT. LTD. (supra) wherein the Hon ble Delhi High Court as passed the order as under: 16. Although it is sought to be projected that the circulars which are subject matter of the challenge in the present petitions were issued to streamline the procedure and to remove ambiguities, in fact what the circulars seek to amend is Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25 can and should include extension or increase in time but cannot be stretched and expounded to include power of the Government to, by a circular, reduce the statutory time for a claim of refund stipulated under the principal enactment, i.e, the Customs Act, 1962. That would make the circular ultra vires the statute and beyond the scope of the Act, Rules, etc. Circulars might depart from the strict tenure of the statutory provision and might mitigate rigours of law thereby granting administrative relief beyond terms of the relevant provisions of the statute, but the Central Government is not empowered to withdraw benefits or impose harsher or stricter conditions than those postulated by the statute in later cases, circulars can supplant the law but not supplement the law . 20. Therefore, the legal position as explained in the above decisions makes it clear that the Circular Nos. 8/2008, 10/2012 and 18/2013 issued by the C.B.E. C. could not have imposed an additional restriction for availing of the exemption in terms of the Notification No. 102/2007-Cus sued under Section 25(1) of the Act. An amendment to a notification issued in exercise of the powers under Section 25(1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , description of the goods or taxable service, assessable value, Central Excise or Service Tax registration number of the person issuing the invoice, name and address of the factory or warehouse or premises of first or second stage dealers or provider of taxable service, etc. For taking the credit, the quantum of duty pald should be shown in the Invoices and the same should be shown separately for each type of duties. In respect of a commercial invoice, which shows no details of the duty paid, the question of taking of any credit would not arise at all. Therefore, non-declaration of the duty in the invoice issued itself is an is an affirmation that no credit would be available. Therefore, non-declaration/non-specification of the duty element as to its nature and quantum in the invoice issued would itself be a satisfaction of the condition prescribed under clause (b) of para 2 of the Notification 102/2007 5.3 In the Mangalore Chemicals and Fertilizers Ltd's case (supra), the Hon'ble Apex Court observed that a distinction, between the provisions of a statute which are of a substantive character and were built-in with certain specific objectives of policy on the one hand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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