2020 (9) TMI 226

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....oms, in terms of Notification No.102/2007 dated 14.09.2007. However, his claim came to be rejected through the impugned Order-in-Original No.25792/2014 dated 20.05.2014, on the ground that the model numbers in the import document are missing in the Sales Invoice and therefore, held that the goods sold in India are not those goods, which were imported and hence, is in violation of the condition in Notification No.102/2007 dated 14.09.2007. Aggrieved against the order of rejection, the present Writ Petition has been filed. 3. Mr.Joseph Prabhakar, learned counsel for the petitioner submitted that the Government Circulars in Circular No.6/2008 dated 28.04.2008 and Circular No.16/2008 dated 13.10.2008, prescribes the mode for making a refund claim, which mandates submission of certain supporting documents, including a certificate from the Statutory Auditor along with the Correlation Certificate attested by the Statutory Auditor. When the petitioner submitted the required statutory certificate along with correlation certificate from his Auditor, certifying that the goods imported were the same that were sold locally, the respondents are not justified in rejecting his refund claim. ....

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....ginal) duly issued by or acknowledged by the concerned ST/VAT authorities shall be submitted by the imported. A certificate from a Chartered Accountant or any other independent authority certifying payment of ST/VAT would not be acceptable in lieu of the original documents. However, a certificate from the statutory auditor/Chartered Accountant, who certifies the importer's annual financial accounts under the Companies Act or any statute, correlating the payment of ST/VAT on the imported goods (in respect of which refund is claimed) with the invoices of sale, would be required along with the original tax/duty payment documents as proof of payment of appropriate ST/VAT for the purpose of para 2(d) & (e) of the said notification. 8. The only reason adduced by the respondent in rejecting the petitioner's claim for refund is that, the model numbers of the goods in the import document were missing in the Sales Invoice submitted by the petitioner. According to the respondent, the import document describes the goods as "Escalator in SKD condition FEH304-1000-6200-1Unit FEH3041000-6150-1Unit FEH304-1000-6080-1 Unit", whereas, the description of the goods as per the Sales Invoice does....

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....the Sales Invoice effected legally in India and therefore, had jumped into the conclusion that the products imported and sold in India are not one and the same. When such an infirmity is noticed by the respondent, there was a duty cast on them to place reliance on the Statutory Auditor's certificate and the correlation statement, as required under Notification No.102/2007 dated 14.09.2007. 12. Though the condition prescribed under the notification does not prescribe a different procedure and even assuming that the respondent was not satisfied with the certificate issued by the Statutory Auditor, such a decision should be based on certain incriminating and reliable documents before him and further, the reasons for disbelieving the certificate requires to be spelt out. Such a proposition has been laid down by a Hon'ble Division Bench of this Court in PP Products Ltd. (supra). The relevant portion of the order reads as follows:- 10.We find that there are three documents which the importer has to produce for being entitled for refund of SAD, they being,(i) document evidencing payment of the said additional duty; (ii) invoices of sale of the imported goods in respect of whic....

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....bstantive conditions of the notification by the appellants. Rejection of partial amount of refund on this flimsy ground is not sustainable.? 13. In view of all the reasoning adduced by this Court and the dictum laid down by the Hon'ble Division Bench in PP Products Ltd. (supra), the impugned order of rejection of the refund application is totally opposed to the procedural regulation and hence the authority, exercising his powers, has exceeded his jurisdiction and therefore, the impugned order itself is liable to be quashed. 14. It would be pertinent to refer to the second ground raised by the respondent with regard to the maintainability of the Writ Petition, for not availing the alternate remedy of an appeal. For such a proposition, reliance was placed on a decision of this Court in M/s. King Overseas vs. Assistant Commissioner of Customs, Chennai. The decision was rendered by a learned Single Judge of this Court in W.P.No.22321 of 2014 dated 31.10.2014, wherein, the learned Single Judge was of the view that the Writ Petition cannot be maintained, when the alternate remedy has not been exhausted. This decision has been quoted in the counter affidavit dated 13.01.2016, filed ....