2023 (4) TMI 786 - AT - Customs

Refund claims for Special Additional Duty (SAD) allowed, penalties invalidated

Shyam Timber Pvt Ltd, Miteshkumar Vindori Thakkar, Pravinbhai Shantilal Jethwa and Miteshkumar Jitenkumar & Co. Versus C.C. -Kandla

The Tribunal allowed the appeals, overturning the denial of refund claims for Special Additional Duty (SAD) under Notification No. 102/2007-Cus. It held ... Refund of SAD - Submission of forged documents with the customs authority with a view to get the refund fraudulently - suppression of material facts - preparation of forged invoices - N/N. 102/2007-CUS dated 14.09.2007 - HELD THAT:- On perusal of the para 3 of Notification it is clear that jurisdictional customs officer shall sanction the refund on satisfying himself that the conditions referred to in above notification are fulfilled. In the present case it is on record that Appellants filed the refund applications which covered all the requisite documents and details. The Assistant Commissioner (refund sanctioning authority) after examining the documents and details related to the refund claim and after satisfying himself that the conditions of notification are fulfilled by the appellants, sanctioned the refund and passed the refund order - in the present matter for recovery of refund amount by issuing show cause notices on the ground that the conditions of Notification has not been fulfilled by the appellants is unjustified. In the present case, when the refund sanctioning order has been upheld upto the CESTAT and no further appeal was preferred by the revenue, the revenue could not have proceeded for recovery by issuing a fresh show cause notice - in the present matter the Lower Authorities held that number of logs mentioned in the sales invoices do not match with the number of logs declared in the Bills of Entry in some cases. In some cases, number of logs have exceeded the log numbers than declared in the Bills of Entry and in some cases log numbers reduced as against declared in the Bills of Entry. Number of logs would increase than the declared in the Bill of Entry. Further Appellant sold logs in the same form or sawn form on CBM. They had never focused on number of logs sold to customers. They imported many consignments under various Bills of Entry. The Appellant sold goods based on CBM. Hence, in some of the cases, number of logs would have been decreased while selling the product. But, the Appellants sold duty paid imported logs on payment of VAT/ Sales Tax through sales invoices in domestic market - while the refund claim were sanctioned to the Appellants the Refund sanctioning authority also verified the said facts and also observed that the conditions of Notification fulfilled by the appellants. Hence, clearly in the present matter department erred in demanding sanctioned refund of SAD from the Appellants. The investigating authority to find out the truth of the said disputed transaction had not inquired with the customers to whom the Appellants sold the goods, therefore, allegations of the revenue is contrary to the facts. Appellants issued manual invoices to the customers and the same were filed with the refund claims. Refund sanctioning authority nowhere dispute the fact related to not mentioning details of number of logs sold to the customers. In the said matter there is no other disputes regarding sale of timbers to the customers after payment of ST/CST as well as compliance of the Notification No 102/2007. The Appellants complied with all the conditions of the above notification, and therefore, actions of the lower authorities for recovery of refund based on number of logs not mentioned in the invoices attached with the refund claim is not sustainable. There are no justifiable reason to uphold the impugned orders - The same are accordingly set aside and appeals are allowed. Issues Involved:1. Eligibility for refund of SAD (Special Additional Duty) under Notification No. 102/2007-Cus.2. Legitimacy of recovery proceedings under Section 28 of the Customs Act, 1962.3. Compliance with conditions of Notification No. 102/2007-Cus.4. Validity of penalties imposed under Sections 114A and 114AA of the Customs Act, 1962.5. Limitation period for recovery proceedings.Summary:1. Eligibility for Refund of SAD:The appellants filed refund claims for additional duty of customs (SAD) paid on imported timber under Notification No. 102/2007-Cus. The adjudicating authority denied the refunds, alleging that the appellants submitted forged documents and did not comply with the conditions of the notification. The Commissioner (Appeals) upheld this decision. The Tribunal examined whether the appellants met the conditions of the notification, including the sale of imported goods after payment of VAT/Sales Tax, and found that they had complied with all necessary conditions. The Tribunal noted that the refund sanctioning authority had verified and sanctioned the refund claims, thus the refunds were legitimate.2. Legitimacy of Recovery Proceedings:The Tribunal observed that the orders sanctioning the refund claims had attained finality up to the CESTAT level and were not further challenged by the revenue. Consequently, the recovery proceedings initiated under Section 28 of the Customs Act were deemed unjustified and illegal. The Tribunal cited the Supreme Court's decision in the case of Asian Paints (India) Ltd., which established that recovery of refunds cannot be made through fresh show cause notices without challenging the original refund orders in higher forums.3. Compliance with Conditions of Notification No. 102/2007-Cus:The Tribunal found that the appellants had complied with the conditions of Notification No. 102/2007-Cus, including payment of VAT/Sales Tax on the sale of imported goods. The discrepancies in the number of logs mentioned in the invoices were attributed to the practice of cutting and sawing logs for transportation and customer requirements. The Tribunal held that these discrepancies did not violate the conditions of the notification. The Tribunal also referenced the case of Agarwalla Timbers Pvt. Ltd. vs. Commissioner of Customs, which supported the view that sawing imported logs did not change their identity, and thus, the benefit of the notification could not be denied.4. Validity of Penalties Imposed:The Tribunal held that penalties under Sections 114A and 114AA of the Customs Act could not be imposed in the absence of mala fide intention on the part of the appellants. The Tribunal found no evidence of fraudulent intent or violation of the notification conditions by the appellants.5. Limitation Period for Recovery Proceedings:The Tribunal noted that the Commissioner (Appeals) had failed to provide a finding on the limitation period for recovery proceedings. The Tribunal emphasized that recovery actions must be initiated within the time limits prescribed by law and that the impugned orders lacked justification in this regard.Conclusion:The Tribunal set aside the impugned orders, allowing the appeals with consequential relief to the appellants. The Tribunal found no justifiable reason to uphold the orders denying the refund claims and imposing penalties. The recovery proceedings initiated by the revenue were deemed illegal and unwarranted.