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TaxTMI 
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2025 (9) TMI 1476
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....e proper officer, including sanctioning Order-in-Original No. KDL/AC/GAR/2209/REF/2009 dated 04.12.2009, through which refund of Rs. 6,71,558/- was claimed, but Rs.4,88,584/- was sanctioned. In addition to sanction of refund of Rs. 4,88,584/- Rs. 1,16,744/- has been re-credited in the DEPB License/ Release Advice. Investigation revealed that the appellant, instead of submitting the actual copies of invoices, prepared another set of invoices whose CBM more or less matched with the CBM shown in the Bill of Entry and endorsed the number of that Bill of Entry on the face of the invoices and submitted the same with refund claim. In most of the cases, the selling price is far less than the landing cost of the timber. Investigation revealed that appellant had submitted the sales Invoices with the refund claim pertaining to sale of timber which was imported under some other Bills of Entry or purchased locally due to which it was observed that correlation of goods was not possible. It was alleged that in order to obtain the refund, they have shown sale of timber logs and submitted the same with the refund claim. The comparison of the invoices submitted along with the refund claim and the do....
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....ing aggrieved from the impugned order dated 26.02.2015, passed by learned Commissioner (Appeals), the present appeals have been filed before this Tribunal.] 3. In the grounds of appeal, the learned Counsel for the appellant has submitted that the impugned order passed by learned Commissioner (Appeals) is incorrect on facts as well as on law. The Show Cause Notice dated 07.03.2012 has been issued by the Additional Director, Directorate General of Central Excise Intelligence, Ahmedabad Zonal Unit, Ahmedabad under Section 28 of the Customs Act, 1962. The show cause notice dated 07.03.2012 issued by the DGCEI is without jurisdiction because it has not been issued by the 'proper officer', as defined in Section 2(34) of the Customs Act, 1962 in view of judgment of Hon'ble Supreme Court in Commissioner of Customs v. Sayed Ali & Anr. - 2011 (265) ELT 17 (SC). 3.1 Learned Counsel for the appellant also submitted that in the present case, the department is not disputing the refund of 4% SAD on merit except for the reasons mentioned in the Show Cause Notice that the appellants have sold the imported timber logs after having undertaken the operation of sawing and cutting on those log....
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....e of the department that the goods that have been imported have not been sold. The department's case is that even though the imported goods have been sold, the benefit will not be available because some process has been carried out on the imported goods. This observation of the department is unfounded since this condition is not in the said notification. With these submissions, learned Counsel for the appellant prays that the impugned order may be set-aside and the appeals may be allowed. 4. Learned AR for the Revenue reiterates the findings of the impugned order and submits that the appellant had not mentioned the Bill of Entry number and endorsement at the time of clearance of goods. Therefore, the appellant is not in a position to corelate the sales invoices with the Bill of Entry. They put Bill of Entry on the forged invoices at the time of filing of refund claim. He prays that the appeals filed by appellants are devoid of merit and may be rejected. 5. After hearing both the sides and perusal of record, I find that in these appeals, the question to be decided before this Tribunal is whether the appellants are entitled to get benefit of Notification No. 102/2007-Cus dated ....
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....ioner (Appeals) has denied the benefit of above mentioned notification to the appellant on the ground mentioned in para-11 of the impugned order. The learned Commissioner (Appeals) has concluded that the appellant had claimed refund of 4% Additional duty (SAD) paid at the time of import of timber incorrectly by submitting sales invoices of timber imported under Bills of Entry other than the Bills of Entry for which they have claimed the refund. Accordingly to the learned Commissioner, the investigation carried out by DGCEI and also the findings of the lower authority clearly indicate that the documents were forged/fabricated by the petitioner in order to claim the refund and that there was no co-relation in the quantity in terms of CBM and number of pieces. According to him, investigations reveal that in most of the cases, the selling price is far less than the landing cost of the timber and they prepared duplicate set of invoices at the time of filing the refund claim to co-relate the same with the corresponding Bills of Entries in order to claim the refund of 4% SAD paid at the time of importation of timber and to fulfil the conditions laid down in Notification No. 102/2007-Cus. ....
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....f logs, the same necessarily had be reduced in size due to conditions imposed by the State for transport/movement of timber. The said fact itself would belie the stand of the Revenue. We, therefore, take the view that a mere conversion of imported logs in the Sawn Timber without loss of identity of the original product would not deprive the importer of the benefit of the exemption notification. 3. The appeals of the Revenue, therefore, are dismissed. The orders of the Tribunal and the High Court are affirmed." 5.2 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. Si....
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.... undermine the purpose of exemption. The Tribunal further held that trader, who paid SAD on imported goods and discharged VAT/ST liability on subsequent sale and who issued commercial invoices without indicating any details of duty paid was entitled to benefit of exemption under Notification No. 102/2007-Cus notwithstanding the fact that that he made no endorsement that credit of duty is not admissible on commercial invoices, subject to satisfaction of other conditions stipulated therein. 5.5 In the case of Commissioner of Customs (Sea Export), Chennai vs. Shri Ram Impex India (P) Limited - 2014 (300) ELT 126 (Tri. Chennai), the Tribunal held that one of the conditions of the said notification is that the sale invoice of the imported goods in respect of which refund of the additional duty is claimed has to be produced. In the present case, the dispute relates to the variation of the description of the goods. It is revealed from the impugned order that vide Bill of Entry No. 532821, dated 07.06.2010, the goods were "Tin Plate or Misprints, Sheets waste/secondary and rejected" whereas in the sale invoice there is a description of "Tin Sheet, W/W or Sheets or "Tin plates defects". ....