2025 (9) TMI 1476 - AT - Customs

Refund of SAD under N/N.102/2007-Cus granted despite timber cutting and documentation discrepancies; penalty against signatory set aside

CESTAT AHMEDABAD - AT allowed the appeal and held the appellants entitled to refund of SAD under N/N.102/2007-Cus (14.09.2007). The Tribunal found that ... Refund of SAD - forgery of documents to claim refund - no co-relation in the quantity in terms of CBM and number of pieces - HELD THAT:- The appellants are entitled to exemption N/N.102/2007-Cus. dated 14.09.2007 even though timber logs were sold after being cut and sawn - In Santosh Timber Trading Company Limited, Naresh Aggarwal vs. Commissioner of Customs, Kandla [2024 (3) TMI 1110 - CESTAT AHMEDABAD], the Tribunal has observed that the primary objection raised in the instant case is that the appellants have sold the timber after cutting and sawing. Further, in Hanuman Timber Company vs. Commissioner of Customs, Visakhapatnam [2016 (12) TMI 1367 - CESTAT HYDERABAD], the Tribunal has held that the goods being timber logs, they are sold by their quantity and not by their number. When the department has no dispute that the entire quantity imported has been sold by the sales invoices produced, they ought to correctly state how the goods in sales invoice varies from the description in packing list if it is a ground to reject refund. The appellants have presently put forward the contention that dimensions shown in the sales invoices may differ for the reason that the logs are cut to facilitate transportation. There is no doubt that Notification No. 102/2007-Cus dated 14.09.2007 grants exemption of SAD to those goods that have been imported for subsequent sale. It does not matter whether any process has taken place or not for the notification to be applicable. The main requirement to be satisfied is “whether the goods have been imported for subsequent sale”. If this requirement is fulfilled, then the benefit of notification shall be available subject to the fulfillment of other conditions mentioned in the said notification - the difference in the number of pieces in the Bill of Entry and in the invoices and the absence of endorsement of the same are not relevant criteria for denying refund claim to the appellant. The he learned Commissioner (Appeals) and the Adjudicating Authority have erred in denying the benefit of N/N. 102/2007-Cus. Dated 14.09.2007 to the appellant in the light of the law laid-down by Hon'ble Apex Court and Hon'ble Gujarat High Court. The appellants are entitled to get the benefit of N/N. 102/2007-Cus dated 14.09.2007. The order imposing penalty on the appellant Shri Anil Aggarwal, authorised signatory is also not sustainable because when the appellant firm is entitled to refund claimed by them, then there appears to be no reason to impose penalty upon the appellant Shri Anil Aggarwal. The impugned order passed by learned Commissioner (Appeals) and Order-in-Original passed by the Adjudicating Authority are liable to be set-aside - Appeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether the appellants are entitled to refund of the additional duty of customs (SAD) under Notification No. 102/2007-Cus. dated 14.09.2007, having imported timber for subsequent sale and having paid VAT/Sales Tax on sale. 2. Whether conversion of imported timber logs by cutting/sawing (reducing dimensions or producing sawn timber pieces) deprives the importer of the benefit of Notification No. 102/2007-Cus. 3. Whether discrepancies between Bill of Entry specifications and sales invoices (differences in CBM, number of pieces, description, absence of Bill of Entry number or non-endorsement about non-admissibility of credit) justify denial of refund under the notification. 4. Whether the revenue has established forgery/fabrication of invoices and other documents sufficient to deny refund and sustain recovery and penalty under sections 28(1) and 114A. 5. Jurisdictional challenge to the Show Cause Notice issued by the investigating agency on the ground that it was not issued by a 'proper officer' under Section 2(34) of the Customs Act. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Entitlement to refund under Notification No. 102/2007-Cus. (legal framework) Legal framework: Notification No. 102/2007-Cus. exempts from SAD goods imported for subsequent sale provided specified conditions are met: (a) duty including SAD paid at import; (b) invoice for sale indicates that credit of SAD is not admissible; (c) claim for refund filed with jurisdictional officer; (d) appropriate sales tax/VAT paid on sale; and (e) specified documentary proof (payment evidence, sale invoices, VAT payment evidence) furnished. The jurisdictional customs officer must satisfy himself about fulfillment of conditions before sanctioning refund. Precedent treatment: The Court relied on earlier appellate and High Court/Supreme Court authorities interpreting the notification and its conditions. Interpretation and reasoning: The Court emphasised that the core requirement is that goods were imported for subsequent sale and that other conditions of the notification are satisfied. Mere procedural lapses in invoices (e.g., absence of explicit endorsement that credit is not admissible) are not determinative if the invoice otherwise does not disclose duty element and buyer could not take credit. The Court analysed whether the appellants had complied with the substantive conditions: payment of SAD at import, filing claim within limitation, payment of VAT/Sales Tax on sale and production of sale invoices and other documents. Ratio vs. Obiter: Ratio - where substantive conditions of Notification No. 102/2007 are satisfied and duty element is not availed as credit by buyer, the notification's purpose is met and refund should not be denied on minor procedural lapses. Obiter - broader remarks about policy aims of the notification. Conclusions: The Court concluded that the appellants satisfied the substantive conditions and therefore are entitled to refund under the notification, subject to absence of proven fraud. Issue 2 - Effect of cutting/sawing the imported timber on entitlement (legal framework) Legal framework: Notification requires import for subsequent sale; it does not stipulate that sale must be of identical physical configuration to that at import. Customs classification differences alone do not establish creation of a new product. Precedent treatment (followed): The Court applied and followed binding and persuasive decisions holding that reduction/processing (cutting/sawing) that does not alter the fundamental identity, name, character or use of the imported timber does not disentitle the importer from notification benefit. The Supreme Court decision holding that mere conversion of logs into sawn timber without loss of identity does not bar the exemption was applied. Interpretation and reasoning: The Court observed that transportation constraints and lawful requirements may necessitate reduction of length; such incidental processing does not create a new commodity. The decisive inquiry is whether the original product has lost its fundamental identity; where identity remains, the notification applies. Ratio vs. Obiter: Ratio - cutting/sawing that preserves identity of timber does not defeat eligibility under Notification No. 102/2007. Obiter - discussion of transport-related regulatory reasons for cutting. Conclusions: The Court held that conversion of timber logs into sawn pieces did not, per se, bar refund; the appellants' sale after cutting/sawing is compatible with entitlement under the notification. Issue 3 - Relevance of discrepancies between Bill of Entry and sale invoices and non-endorsement on invoices (legal framework) Legal framework: Notification requires production of sale invoices and evidence of VAT/Sales Tax payment; it does not expressly require the Bill of Entry number to be mentioned on sale invoices or mandate identical piece counts or descriptive uniformity. Para 2(b) requires indication in the invoice that credit of additional duty is not admissible. Precedent treatment (followed/distinguished): The Court followed authorities holding that minor variations in descriptions or omission of Bill of Entry numbers on invoices are not sufficient to deny refund. The Court relied on decisions holding that absence of explicit endorsement is not fatal when invoices do not disclose duty and buyer cannot take credit (i.e., practical non-availability of Cenvat credit satisfies the notification's object). Interpretation and reasoning: The Court reasoned that differences in CBM, piece count or minor descriptive variances can result from cutting for transport and do not necessarily demonstrate that the goods sold are other than the imported goods. The object of para 2(b) is to prevent buyers from availing credit; where invoices lack duty component and buyers are not in a position to take credit, the procedural absence of an endorsement does not subvert the notification's purpose. The Court found no established rule in the notification requiring Bill of Entry numbers to appear on sale invoices. Ratio vs. Obiter: Ratio - minor discrepancies in description, quantity or absence of Bill of Entry numbers/endorsement on invoices do not automatically disentitle a claimant if the substantive conditions are met and the buyer could not take SAD credit. Obiter - observations on the proper scope of scrutiny over documentary variances. Conclusions: The Court held that the discrepancies and non-endorsement relied upon by the revenue were not sufficient grounds to deny the refund; such matters were immaterial where the substantive conditions of the notification were satisfied and there was no proven availment of credit by buyers. Issue 4 - Allegation of forged/fabricated invoices, sufficiency of proof to deny refund, recovery and penalty Legal framework: Denial of refund, recovery under Section 28(1) and imposition of penalty under Section 114A require proof of erroneous refund/amount foregone and culpable conduct such as suppression, mis-statement or fraud. The adjudicating and appellate authorities must be satisfied on the record before sustaining recovery and penalty. Precedent treatment: The Court surveyed authorities that treat allegation of forged documents as a grave charge which must be established by cogent evidence before denying statutory relief or imposing penalty. Interpretation and reasoning: The Court examined the investigation findings relied upon by the revenue and concluded that the record did not establish forgery or fabrication to the satisfaction required. Lorry receipts and other material relied upon were not shown to conclusively demonstrate fabrication; discrepancy in dimensions could be explained by cutting for transport. Because the Court found entitlement to refund on merits, it held that imposition of penalty on the authorised signatory lacked justification. Ratio vs. Obiter: Ratio - where the revenue fails to establish forgery/fabrication and the claimant satisfies the substantive conditions of a refund notification, denial of refund and imposition of penalty cannot be sustained. Obiter - comments on the quality of evidence required to prove fabrication. Conclusions: The Court concluded that the revenue had not proved forgery/fabrication on the requisite standard; the recovery and penalty based on alleged forgery and erroneous refund were not sustainable. Issue 5 - Jurisdictional challenge to the Show Cause Notice Legal framework: A show cause notice must be issued by a 'proper officer' as defined under the Customs Act; questions of jurisdictional validity may vitiate proceedings if established. Precedent treatment: The jurisdictional objection was raised by the appellants relying on earlier authority but the Tribunal's ultimate determination focused on merits and applicable legal principles as settled by higher courts. Interpretation and reasoning: The Court noted the jurisdictional challenge in submissions but elected to decide the appeals on the substantive entitlement under the notification and the sufficiency of evidence of forgery. The judgment does not rest its outcome on a finding that the show cause notice was invalid for want of issuance by a 'proper officer.' Ratio vs. Obiter: Obiter - jurisdictional objection was recorded but not treated as decisive; the decision is grounded on substantive entitlement and insufficiency of proof of fraud. Conclusions: The Court did not accept the revenue's grounds for denial on the merits and did not rely on the jurisdictional contention to affirm the impugned orders; relief was granted to the appellants based on substantive considerations. Final disposition (conclusions flowing from the above issues) The Court allowed the appeals, set aside the adjudicating and appellate orders denying refund and imposing recovery/penalty, held that appellants are entitled to benefit under Notification No. 102/2007-Cus. (subject to audit/verification consistent with findings), found that cutting/sawing did not bar entitlement, that minor discrepancies and absence of invoice endorsement were not fatal, and that allegations of forgery were not established so as to sustain recovery and penalty.