TaxTMI 
TaxTMI 
2010 (1) TMI 1090
X X X X Extracts X X X X
X X X X Extracts X X X X
....ff Act, 1975, under invoice No. DMPL/IMM/2008 dated 31-3-2008 which did not bear the serial number; that since the appellant gets exemption from SAD on sale of the machine in terms of notification No. 102/2007-Cus., dated 14-9-2007, filed refund claiming refund of SAD amounting to Rs. 21,41,757/- that the SCN dated 4-6-2009 was issued directing the appellant to show cause as to why the refund should not be rejected on the following grounds - (i) that the subject goods when imported into India on 20-4-2007, were not imported for subsequent sale, (ii) that the appellant did not pay any customs duty on importation on goods but was forced to pay the same including the special additional duty with interest due to his failure to operate his plant and fulfil the export obligations, (iii) that the incidence of customs duty including special additional duty and interest on delayed payment was not borne by the appellant but by Sujata, as per ledger account extract of the appellant, (iv) that the remarks on the invoice about non-admissibility of special additional duty credit to the buyer appears on the invoice but, however, it is not understood whether the copy of the said ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Central Excise authorities and Development Commissioner, and Notification No. 52/2003 is silent about the disposal or manner as to how to dispose of any imported goods and the notification should not be read in manner so as to defeat the object of the notification and the expression "for use" appearing in the said notification has to be interpreted or must mean "intended for use" and does not imply "goods actually used" or 'goods used' and the appellant relies on the decision of the Tribunal Bangalore in the case of Ramsons Garments Finishing Equipments Pvt. Ltd v. CCE, Bangalore [2007 (211) E.L.T. 44]; (iv) that as per the settled principle of law, the debit/credit notes is a routine practice and the department has not adduced any evidence which could lead that the debit/credit notes are not genuine; (v) that though the financial accounts of their both the companies were scrutinized at the time of PH as evidenced from the record of PH, it appears that the Assistant Commissioner has overlooked the above aspect and the appellant relies on the decision of the Rajasthan High Court in the case of UOI v. A.K. Spintex Ltd. [2009 (234) E.L.T. 41]; (vi) tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the brief facts of the OIO and it can be seen that the sole responsibility of the adjudicating authority is to go through the said documents and come to definite conclusion but no such exercise has ever been done; (xii) that though the appellant was no supposed to pay the SAD as the sale transaction had taken place, the payment of the SAD has been honoured at the behest of the Central Excise department; (xiii) that Notification No. 102/2007-Cus., dated 14-9-2007 is a conditional exemption and the appellant has fulfilled all the conditions enlisted in clause (a) to (d) i.e. they have paid appropriate duties of customs including the SAD, specifically indicated in the invoice that no credit of additional duty of customs paid would be admissible, they filed refund claim with the concerned authorities, they have paid appropriate amount of VAT after effecting the sale of said goods; (xiv) that they have furnished/produced the copies of relevant documents viz. TR6 challan duly countersigned by the Supdt. Range Sawantwadi, the invoice of sale of imported goods and receipted copy of the challan evidencing payment of VAT which is honoured. 3. PH was held on 5-1-2010 at 11.30 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al goods were not imported for subsequent sale. The Assistant Commissioner at page 11 had held that "the appellant first of all has not imported the goods for subsequent sale and has not paid all applicable duties on importation". In this regard the appellant claims that the subject goods were imported for excavation in the mining but due to the global recession, they could not undertake the work; that since the goods were not put into use, they decided to transfer the same for consideration to their sister concern i.e. Sujata. Further the appellant claims that after import of the goods under notification No. 52/2003, the appellant was not prevented to sell the same subsequently after paying requisite customs duties, because the words used in Customs Notification No. 52/2003 are 'for use" which does not imply that the goods should be actually used and to support his contention, the appellant relies on the Hon'ble Tribunals decision in the case of M/s. Ramsons Garments Finishing Equipments Pvt. Ltd. v. CCE, Bangalore (supra). In the above case, the appellant imported machineries/equipments in terms of Notification No. 20/99-Cus., dated 28-2-1999, as amended, availing the benefit at ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uty particulars etc. In the issue on hand, it is a established fact that the appellant has not issued regular invoices since the appellant himself has admitted that the goods were transferred to his sister concern and hence does not bear the serial number. However, the other particulars such as, value, duties, name of the machine etc. are available. Further it is accepted that the invoice contains the declaration that the SAD leviable under Section 3(5) of the Customs Act is not available as credit. In this regard, the Assistant Commissioner's conclusion with regard to invoice at page 8 is to be mentioned. At page 8 in the last para, he has concluded as under- "However, on going through the invoice No. DMPL/IMM/2008 dated 31-3-2008 filed along with refund claim, I have seen that the description of goods, quantity, unit price, total price + customs duties + interest and VAT has been incorporated". 4.2.1 From the conclusion, it is very clear that the invoice, though does not bear the serial number, contains all the required particulars. I have seen the invoice which contains all the required particulars as observed by the Assistant Commissioner. Therefore the format of the invo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ely concluded that the appellant is not enriching himself twice. I have also perused ledgers of both the appellants and Sujata along with their balance sheets ending 31-3-2009 and found that the appellant issued credit notes for SAD portion thereby borne of SAD portion himself. In this regard the following decisions relied upon by the appellant also support that when credit note from the seller and debit note from the buyer are issued subsequent to the sale, the duty incident has not been passed on to the buyer :- M/s. OM Pharmaceutical Ltd. v. CCE, Bangalore, 2008 (232) E.L.T. 309, M/s. Jyoti Ltd. v. CCE, Vadodara, 2008 (232) E.L.T. 832 , CCE v. U.T. Ltd., 2008 (232) E.L.T. 199 and Radiant Engineers v. CCE, Pune-I, 2008 (232) E.L.T. 701. Under the above circumstances, it is not known on what grounds the refund claim could be rejected. It is immaterial that whether the duty was borne by the appellant or by the buyer. But the allegation that the duties were borne by the third party were not proved with documentary evidence as contended by the appellant. In fact, the Assistant Commissioner himself has concluded (4.3.0 supra) that the noticee has paid customs duties and interest vide ....