2015 (11) TMI 1017 - AT - Customs

Tribunal Upholds Appellant's Appeal, Rejects Revenue's Claims

Commissioner of Customs, Kandla Versus M/s Vestas Wind Technology India Pvt. Ltd.

The Tribunal dismissed both appeals of Revenue, upholding the impugned Order-in-Appeal and Orders-in-Original in favor of the Appellant. In Appeal ... Denial of refund claim - Refund of SAD - Issue of Invoices before the date of Bill of Entry - appellant submitted that, the invoice was prepared in advance since the consignment was imported against a specific order and was meant for the end user which was known well in advance and therefore, they prepared the invoice in advance, but had issued the same only after the payment of duty etc. - Held that:- There is no evidence on record that the invoice has been issued prior to the Bill of Entry and payment of duty. The Department has also not countered that the details given in the invoice do not tally with the Bill of Entry. - Refund allowed. Issues:1. Refund of Special Additional Duty (SAD) - Compliance with Notification No.102/2007.2. Submission of original documents with refund application.3. Unjust enrichment regarding passing on SAD payment to customers.Analysis:1. Refund of SAD - Compliance with Notification No.102/2007:- The appeals were filed by Revenue against Orders-in-Original regarding the refund of SAD. The Commissioner (Appeals) upheld the Orders-in-Original, leading to the appeals before the Tribunal.- In Appeal No.C/10985/2014, the issue was regarding the date of issuance of invoices compared to the Bill of Entry date. The Tribunal found that the invoices were prepared in advance but issued only after assessment and payment of import duty, as evidenced by matching details with the Bill of Entry. The Department failed to provide evidence contradicting this, leading to the Tribunal upholding the Order-in-Appeal.- In Appeal No.C/10986/2014, the Revenue claimed that original documents were not submitted with the refund application. However, the Appellant had indeed submitted the required documents, as confirmed by the documents and responses to queries raised by the Department. The Tribunal found no merit in Revenue's argument and upheld the Order-in-Appeal in this regard.2. Submission of Original Documents with Refund Application:- The Appellant had submitted the necessary original documents along with the refund application, as per the requirements specified. Despite Revenue's claims to the contrary, the Appellant's responses to queries and supporting documents proved the submission of original Bills of Entry and TR-6 challans, as mandated for the refund application process.3. Unjust Enrichment Regarding Passing on SAD Payment to Customers:- Revenue alleged unjust enrichment, stating that the Appellant passed on the SAD payment to customers. However, the Appellant demonstrated through invoices and declarations that only VAT was separately shown, with clear statements disallowing credit for additional duty of Customs. The Tribunal referred to Circulars clarifying the procedures for VAT payment and SAD refund, noting that the burden of 4% SAD had not been transferred to buyers. The Tribunal found no unjust enrichment in this case, supporting the Appellant's position and dismissing Revenue's contentions.In conclusion, the Tribunal dismissed both appeals of Revenue, upholding the impugned Order-in-Appeal and Orders-in-Original in favor of the Appellant based on the detailed analysis of each issue presented before the Tribunal.