TMI Blog2024 (3) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... sue is specifically covered by the decision of Hon ble Apex Court in the case of V ariety Lumbers[ 2018 (6) TMI 1499 - SUPREME COURT] , it has been held that the refund cannot be denied even if the imported logs were cut and sawn before sale. Non-endorsement of the declaration in terms of para 2(b) of Notification 102/2007-Cus. The said para 2(b) requires the importer to mention on the invoices 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. We find that since the appellant is not a registered dealer, therefore the question of taking credit on the invoices issued by them does not arise. Non-mention of Bills of Entry number on the invoice and mismatch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und on the ground that the item imported was timber logs whereas the item sold by the appellant was saw logs. There was also some allegations of mismatch of description and procedural violations of Notification 102/2007-Cus. 3. Learned counsel has relied on the decision of Hon ble Apex Court in the case of Variety Lumbers reported at 2018 (360) ELT 790 (SC), wherein identical matter has been considered. In the said decisions it has been held that the refund cannot be denied even if the imported logs were cut and sawn before sale. 3.1 Learned counsel pointed out that next objection raised by the Revenue is that in terms of para 2(b) of Notification 102/2007-Cus the importer is required to issue invoice for sale of said goods specifically ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered rival submission. We find that the primary objection raised in the instant case is that the appellant have sold timber after cutting and sawing. This issue is specifically covered by the decision of Hon ble Apex Court in the case of Variety Lumbers reported at 2018 (360) ELT 790 wherein following has been observed: We have heard the Learned Counsels for appellant-Revenue. The issue turns on an interpretation of the Notification dated 14-9-2007 which contemplates refund of additional duty of Customs paid by the importer of goods under Section 3(5) of the Customs Tariff Act, 1975. The notification in the main part contemplates that the import must be for the purpose of subsequent sale and is inter alia subject to the condition tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported the goods after paying SCVD. At the time of its sale in the local market, they also paid local taxes such as sales tax or the Value Added Tax as may be applicable. Before transportation of timber, they were required to reduce its size since the RTO rules did not permit transportation of logs longer than 40 feet. If only for cutting length of the logs, which were in excess of 40 feet, sawing operations were carried out and after some cleaning and scaring was done, timber logs of smaller pieces were sold, we do not see how respondents can be stated to have breached any of the conditions of the Exemption Notification dated 14-9-2007. He also relied on the decisions in the following cases: Hanuman Timber Co. 2016 (12) TMI 1367-CESTAT H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 9 of the CENVAT Credit Rules, 2004. When there is no mention of passing on duty in the invoice, the buyer cannot take credit of the said duty (SAD) which is not mentioned in the invoice. I do agree with this contention of the ld. advocate when there is no duty mentioned in the invoice, buyer cannot take credit of the same. Although there is a condition in the Notification to claim refund i.e. to make endorsement on the invoice, it may be relevant for the invoices which are issued under the Central Excise Law/Customs Law/Service Tax law showing specifically the duty suffered by the supplier on the goods shown in the invoice and the buyer is entitled to take the credit of the same. As pointed out by the Hon ble Apex Court in Malwa Industri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleging that there is mismatch with regard to the description of goods in the sales invoices when compared to the Bills of Entry. On perusal of the documents placed before us, we find that in page-20 the sales invoice describes the goods as ENABLE 3505HH (LDPE) , whereas in the Bills of Entry the product is described as ENABLE 3505HH (LLDPE) . In pages 50-74, the appellant has produced the Chartered Accountant s Certificate along with the reconciliation statement. The Chartered Accountant has verified the accounts and stated that the appellants are eligible for the refund in respect of SAD paid by them. The correlation sheet is also enclosed along with the Chartered Accountant s Certificate to show the description of the goods in the Bill ..... X X X X Extracts X X X X X X X X Extracts X X X X
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