TaxTMI 
TaxTMI 
2025 (10) TMI 1206
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....long with the refund claim: - i. 20 nos. Original Importer's copies of the relevant Bills of Entry ii. 20 Nos. TR6 Challans evidencing payment of duty against the relevant Bills of Entry iii. Invoices of sale of the imported goods iv. VAT/CST Challans along with returns Form acknowledgment photocopies v. Self-declarations dated nil from the Claimant pertaining to the said Refund claim vi. Correlation Certificates attested by a Chartered Accountant vii. Chartered Accountants Certificates dated 20.12.2011 pertaining to the said Refund claim 2.3 On noticing that the appellant had submitted carbon copies of the sale invoices, with the original stamp declaring non-admissibility of CENVAT Credit paid by them, copies of the sale invoices were obtained by the original authority from some of the buyers to ascertain the veracity of the sale invoices submitted by the appellant. 2.4 Copies of the sales invoices issued by the appellant were submitted to the original authority by five buyers. It was observed from the copy of the sales invoices received from one of the buyers, viz. M/s. Chowdary Enterprises, Hyderabad, that the ....
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....eed not indulge in verifying all invoices. iii. The stipulation to stamp the sale invoice itself has been subverted by the appellant by sending real sale invoices without stamping but giving copies of sales invoices with stamping to the Department. iv. The proof of appellant's malafide intention is evident with one invoice itself. 3. The Appellant has preferred the present appeals assailing the impugned order passed by the LAA. 4.1 The Ld. Advocate Mr. J.V. Niranjan appeared and argued for the Appellant firm and submitted that the present issue is no longer res integra as this Tribunal in the case of Acqueon Technologies P. Ltd. Vs Commissioner of Customs reported in 2023 (9) TMI 581 had held that the stamping is only procedural and is not fatal to the claim. 4.2 He further submitted that the LAA ought to have appreciated that an examination of one invoice should not be the reason for concluding that the stamp has not been affixed on all the sale invoices and is hence not a valid ground for rejection of the claim of the appellant by the Deputy Commissioner Refunds and he ought to have held that in as much as a Chartered Accountants certificate that the Cr....
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....eneficial provision and applied his mind on the decision of Hon'ble Supreme Court in the case of CCE Vs. Malwa Industries Ltd., [2009 (235) ELT 214 (SC)] cited by the appellants wherein the Hon'ble Court held that the exemption notification should be read liberally and should not be interpreted in a narrow manner to deny the benefits on technical or procedural grounds. The LAA totally ignored the same, without even acknowledging the contention raised by the appellant. 5. Per contra, the Ld. Authorized Representative Ms. Anandalakshmi Ganeshram for the Revenue supported the findings in the impugned order. She submitted that both the adjudicating authority and the LAA have found that the sales invoice No. 211 dated 21.07.2011 submitted by the Appellant and randomly verified at buyers end did not contain the mandatory endorsement as per the condition in para 2(b) of notification No. 102/2007-Cus., dated 14.09.2007. Therefore, they have rightly rejected the refund claim of the Appellant. 6. Heard both sides and perused the appeal records. 7. The issues to be decided in this case are: - i. Whether the sales invoices submitted by the Appellant contained the endorsement ....
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....ontended that the assessee is to avail the credit on the strength of invoice issued under the provisions of Central Excise Law/Customs Law/Service Tax laws, as per the provisions of rule 9 of the CENVAT Credit Rules, 2004. When there is no mention of passing on duty in the invoice, the buyer cannot take credit of the said duty (SAD) which is not mentioned in the invoice. I do agree with this contention of the ld. advocate when there is no duty mentioned in the invoice, buyer cannot take credit of the same. Although there is a condition in the Notification to claim refund i.e. to make endorsement on the invoice, it may be relevant for the invoices which are issued under the Central Excise Law/Customs Law/Service Tax law showing specifically the duty suffered by the supplier on the goods shown in the invoice and the buyer is entitled to take the credit of the same. As pointed out by the Honble Apex Court in Malwa Industries (supra) the exemption Notification should be read liberally. In this case, compliance of condition 2(b) of the said Notification is not required of the clearance on commercial invoice. Following the ratio laid down by the Apex Court, I find the purpose of issuing ....
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....made in the facts and circumstances detailed below : 2.1. The appellant, a trade, imported goods on which the discharged special additional duty of customs under Section 3(5) of the Customs Tariff Act, 1975. The said goods were sold on payment of CST/VAT under commercial invoices. In the said commercial invoice, the appellant did not indicate of SAD element separately. The appellant also did not make any endorsement on the invoice to the effect that no cenvat credit of the SAD is admissible in respect of the goods covered therein. The appellant claimed benefit under Notification 102/2007-Cus dated 14.09.2007 which 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)....
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....ould not be denied merely because the required endorsement was not made as that would constitute only a technical infraction. The purpose of clause (b) of para 2 of the Notification is to prevent availing of double benefit, i.e., the buyer of the goods takes the credit of SAD paid while the seller gets refund) of the SAD paid. It was noted that in the case of a trader, who is not registered with the department and who is also not authorised to issue CENVATable invoices and who does not indicate in the commercial invoice the details of the SAD paid, the question of taking any credit would not arise inasmuch as commercial invoices issued by a non-registered trader is not a document on the strength of which CENVAT could be availed md in the absence of duty particulars thee question of taking any CEKVAT credit also would not arise. Therefore, it was held that even if (he trader did not make the endorsement las envisaged under clause (b) of paragraph 2, it would not make any material difference and refund of SAD paid could be allowed subject to satisfaction of the other conditions stipulated in the notification. 2.3. However, another coordinate bench of this Tribunal, in the ca....
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....equent sale were initially exempted from levy of SAD vide Sl. No. 11 of the Table Annexed to notification No. 29/98-Cus dated 2-6-1998. The said exemption underwent many changes over the years and the present exemption is contained in notification 102/2007-Cus wherein the exemption is operationalised through a refund mechanism. Notwithstanding these changes, the object of the levy was to counterbalance the levy of local taxes on domestically produced goods on imported goods so that there is a level playing field between the two. However, when the imported goods are subsequently sold in the domestic market bearing the burden of local taxes, exemption is provided from SAD so as to neutralize the impact of double levy. This object and purpose of the levy and the exemption needs to be kept in mind while interpreting notification No. 102/2007-Cus. 5.2. Rule 9 of the CENVAT Credit Rules prescribes the documents on the strength of which CENVAT credit can be taken. An invoice issued by an importer is also one of the prescribed documents However, for taking the CENVAT credit, under sub-rule (2) of the said Rule 9, following particulars are required to be indicated, namely, details ....