2019 (5) TMI 923

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....d 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 manufacture in Customs Bond by M/s Vijai Marine Services. ii. Con....

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....ified 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 given effect if the following conditions are fulfilled : a) the importer of the said goods shall pay all ....

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....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 respect of the Special Additional Duty (SAD) paid in terms of the provisions of Section 3(5) of the Customs Tariff Act, 1975, for the clearance of the said Barge for Home Consumpti....

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.... 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 not to benefit the consumers by refusing refund to manufacturers (on the ground of passing on the burden) but only to enable the Government to retain the illegally collected taxes. It is suggested that the creation of the Consumer Welfare Fund is a mere pretence and not an hon....