TaxTMI 
TaxTMI 
2019 (5) TMI 923
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....eld as follows: "I, hereby reject the refund of 4% Special Additional Duty amounting to Rs. 20,32,271/- (Rupees Twenty Lakhs Thirty Thousand Two Hundred and Seventy One) only claimed by M/s Bhavana Earthmovers" 2.1 M/s Bhavana Earthmovers, Panaji (Respondents) filed a refund claim for an amount of Rs. 20,31,271/- in respect of Special Additional Duty of Customs paid against Ex Bond Bill of Entry No 06/03.03.2011 by M/s Vijai Marine Services, Rassaim, Goa. M/s Vijai Marine Services had manufactured in Custom Bond, Barge M V Aquarius and de-bonded the same for home consumption by filling the said Bill of Entry and after payment of applicable Custom Duties. Respondents filed the said refund claim on the strength of No Objection certificate issued by M/s Vijai Marine Services. 2.2 Respondents had claimed the said refund in terms of Notification No 102/2007-Cus dated 14.09.2007. The refund claim was filed on 26.12.2011. 2.3 A show cause notice objecting to sanction of the refund was issued 0n 16.03.2012 on the following ground: i. Para 1 of the Notification is not complied as the goods i.e Barge M V Aquarius was not imported for subsequent sale but was manufac....
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....which refund claim could have been allowed. Since in the present case the conditions as specified by Notification No 102/2007-Cus have not been complied with refund claim should have been rejected. 4.3 Since the matter is in very narrow compass it has been taken up for disposal on the basis of submissions made by the learned Authorized Representative. 5.1 we have considered the submissions made in appeal/ cross objection and during the course of argument along with the impugned order. 5.2 Notification No 102/2007-Cus dated 14.09.2007 (as amended) reads as follows: "In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the goods falling within the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India for subsequent sale, from the whole of the additional duty of customs leviable thereon under sub-section (5) of section 3 of the said Customs Tariff Act (hereinafter referred to as the said additional duty). 2. The exemption contained in this notification shall be g....
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....goods on payment of applicable Customs duty. In his order Commissioner (Appeal) has satisfied himself that no CENVAT Credit has been claimed in respect of the SAD paid. Observations made by the Commissioner (Appeal) are reproduced below: "It is seen from the case records that "the Appellant submitted before the Adjudicating Authority a Certificate from their Chartered Accountant attested to the fact that the import duty was born by the Appellants (Purchaser) and confirming that this amount has not been recovered from any person or in any manner." Further, vide Letter dated 26.12.2011 of M/s Vijai Marine Services, the Manufacturer-Importer, along with the copy of the Ledger Account of the Appellant which clearly states that though the Customs Duties and the VAT have been paid by M/s Vijai Marine Services, however, the same has been borne by M/s Bhavana Earthmovers. The letter further states that M/s Vijai Marine Services, the Manufacturer Importer, have no objection if the refund amount of Special Additional Duty is paid to M/s Bhavana Earthmovers. In any event this fact that the Appellant who purchased the Barge M V Aquarius did not claim CENVAT Credit in....
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.... by him May make an application ..................................... For such refund ......................................... Explanation- For the purpose of this sub-section "the date of payment of duty or interest" in relation to a person other than the importer shall be construed as "the date of purchase of goods". This Section makes it abundantly clear that the refund that accrues on the Importer can be claimed by the one who has borne the payment which is sought to be refunded. Explanations to the said Section further states that for the purpose of sub-section (1)(b) "the date of payment of duty or interest" in relation to a person other than the importer shall be construed as "the date of purchase of goods" by the said person. The law is thus clear that the refund accrues on an Importer can be claimed by anyone who has borne the payment sought to ne refunded." 5.7 In case of Mafatlal Industries [1997 (89) ELT 247 (SC)] Hon'ble Apex Court has held as follows: "89.A major attack is mounted by the learned Counsel for petitioners-appellants on Section 11B and its allied provisions on the ground that real purpose behind them was no....
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....provisions of the Act go, they are unexceptionable. Section 12C which creates the Consumer Welfare Fund and Section 12D which provides for making the Rules specifying the manner in which the money credited to the Fund shall be utilised cannot be faulted on any ground. Now, coming to the Rules, it is true that these Rules by themselves do not contemplate refund of any amount credited to the Fund to the consumers who may have borne the burden; the Rules only provide for "grants" being made in favour of consumer organisations for being spent on welfare of consumers. But, this is perhaps for the reason that Clause (e) of the proviso to sub-section (2) of Section 11B does provide for the purchaser of goods applying for and obtaining the refund where he can satisfy that the burden of the duty has been borne by him alone. Such a person can apply within six months of his purchase as provided in Clause (e) of Explanation-B appended to Section 11B. It is, therefore, not correct to contend that the impugned provisions do not provide for refunding the tax collected contrary to law to the person really entitled thereto. A practical difficulty is pointed out in this behalf by the learned Counsel....