TaxTMI 
TaxTMI 
2024 (1) TMI 1533
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....submissions made in the appeal preferred before him. 1.1. The Ld. Joint Commissioner confirmed and ordered for recovery of erroneous refund granted to the Appellant mainly on the following premises: I. The Appellant submitted sales invoices with the refund claims pertaining to sale of timbers which were imported though Bills of Entry on payment of SAD. Number of logs declared in the Bill of Entry did not match with the number of logs shown in the sales invoices issued to the customers in domestic market even though cubic meter (CBM) mentioned in the sales invoices matched with the Bills of Entry; II. Description of the imported goods declared in the Bills of Entry does not match with the description mentioned in the sales invoices; III. In some cases, sale invoices filed with the refund claims did not mention number of logs whereas sales invoices seized from the premises of the Appellant at the time of search, declared log numbers and therefore, it appears that the Appellant generated another set of Invoices which were to be provided to the customs department and the customers; IV. There was no correlation in the number of logs imported and co....
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.... is identical to the case decided by this Tribunal vide order dated 12.04.2023 (supra) the said order is reproduced below:- "All these appeals have been filed by the appellant against the Order- in-Appeal Nos. KDLCUSTM-000-APP-356 to 360-14-15 dated 28.08.2014 under which four Orders-in-Original passed by the adjudicating authority have been upheld. Learned Adjudicating authority has rejected refund claims filed by the appellants under Notification No. 102/2007-Cus., dated 14-9- 2007. 02. The facts of the case are that the appellants had filed refund claims of additional duty of customs which were sanctioned to the appellant vide various Orders-In-Original. Based on the information gathered that Appellant had claimed refund of 4% SAD that had been paid at time of import of timber incorrectly by submitting sale invoice of timber imported under some other Bill of Entry, a search was carried out at the business premises of the appellants by the DGCEI. On the basis of the DGCEI's Investigation report, show cause notices were issued to the Appellants. In adjudicating, the adjudicating authorities took the view that the appellants have submitted forged documents wit....
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....he facts that appellant sold the SAD paid imported timber after payment of VAT/Sales Tax. The Learned Commissioner (Appeals) ought to have appreciated that the Appellant complied with all the condition laid down in the said Notification and therefore the refund amount ought not to have been demanded from the appellant. Since the impugned order is misconceived both on facts and in laws, the impugned order is not Sustainable in the eyes of law. 3.1 He also submits that the Learned Commissioner (Appeals) ought to have appreciated that merely not mentioning a Bill of Entry number or CBM on invoices submitted to the Forest Department and subsequently to customers, does not mean that the Appellant did not sell the imported goods on which SAD was paid. The Appellant did not mention a Bill of Entry Number on the invoices issued to the customer due to keeping the imported price confidential. Had the appellant indicated a Bill of Entry Number over the invoices issued to customer, the customers would have easily known the price of imported goods, which would impact on the business of the Appellant. Appellant did not own any saw mill and used the Gandhidham premises only for storage o....
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....scription mentioned in the invoices to the customers, refund cannot be denied merely not mentioning Bill of Entry number. In the absence of the condition of mentioning accurate CBM over the invoices issued to the Customers, the department cannot deny refund by holding that invoices issued to the customers do not mention the accurate CBM by relying upon the circular issued by Central Board of Central Excise & Customs. Notification itself does not provide for any condition, such a condition cannot be imposed by subsequent circular. He placed reliance on the decision of Inter Continental (India) Vs. Union of India - 2003 (154) ELT 37 (Guj.) 3.5 He further submits that Shri Pravinbhai Shantilal Jethwa did not admit in his statements recorded on 22.07.2010 and 29.02.2012 that the imported goods on which SAD was paid, was not sold in India after payment of sales tax. He only mentioned that they mentioned CBM and description inaccurately. The contents of the statement do not reveal that Appellant had fraudulently filed refund claim to obtain refund of SAD. The appellant did not alter the details of invoice number and date, quantity and rate, description of the goods, value of the....
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....TA) * CHAKRAPANIVYAPARPVT. LTD. VS. COMMISSIONER OF CUS., BANGALORE -2019(370) ELT 947 (TRI. BANG.) * M/S TECHNOVA IMAGING SYSTEMS PVT. LTD. VS. COMMISSIONER OF CUSTOMS, ACC MUMBΑΙ - 2022 (6) ΤΜΙ 1091 -CESTAT MUMBAI * JOHNSON LIFTS PVT. LTD. VS. ASSTT. COMMR. OF CUS. (REFUNDS), CHENNAI -2021 (2)TMI 401-MADARA HIGH COURT. * P.P. PRODUCTS LTD. VS. COMMISSIONER OF CUSTOMS, CHENNAI - 2019(367)ELT 707 (MAD.) * AGARWALLA TIMBER PVT. LTD. VS. COMMISSIONER OF CUSTOMS, KANDLA 2014(299) ELT 455 (TRI. AHMD.) * COMMISSIONER OF CUSTOMS VS. VARIETY LUMBER PVT. LTD. - 2014(302) ELT 519 (GUJ.) * COMMISSIONER OF CUSTOMS VS. VARIETY LUMBERS PVT. LTD. - 2018(360) ELT 790 (SC) 3.9 As regard the imposition of penalty on the appellants he submits that in the absence of mala fide intention on behalf of the appellants penalty cannot be imposed. 04. On other hand against this, Shri Tara Prakash, learned Deputy Commissioner (AR) reiterated the findings in the impugned order and submits that the claim of the appellants has been rightly rejected by the authorities. 05. I have heard both the sides a....
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....e conditions referred to in para 2 above, are fulfilled. On perusal of the para 3 of above Notification it is clear that jurisdictional customs officer shall sanction the refund on satisfying himself that the conditions referred to in above notification are fulfilled. In the present case it is on record that Appellants filed the refund applications which covered all the requisite documents and details. The Assistant Commissioner (refund sanctioning authority) after examining the documents and details related to the refund claim and after satisfying himself that the conditions of notification are fulfilled by the appellants, sanctioned the refund and passed the refund order. Therefore, in the light of this facts the subsequent proceeding of department, in the present matter for recovery of refund amount by issuing show cause notices on the ground that the conditions of Notification has not been fulfilled by the appellants is unjustified. 5.1 It is observed that against the Orders sanctioning their refund claim, the revenue had filed appeal before the Commissioner (Appeals) who vide Order in Appeal No.38 to 235/2013/CUS/COMMR(A)/ dated 14.03.2013 dismissed the reven....
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.... 11A of the Act shall precede the proceedings under Section 35E of the Act? 7.1 While considering the aforesaid issue it is required to be noted that as such in the present case the original authority while passing the O-I-O allowed the refund. That the order-in-original sanctioning the refund was the subject matter of review under Section 35E of the Act. On merits the Reviewing Authority set aside the order-in-original sanctioning the refund. Therefore, as such stricto sensu it can be said to be giving effect to the order passed under Section 35E of the Act. As such the assessee is claiming the refund on the basis of 0-1-0 sanctioning the refund which as such has been set aside in the proceedings under Section 35E of the Central Excise Act. 7.2 Now so far as the submissions made on behalf of the Assessee relying upon the decisions of the Tribunal in the case of Re-Rolling Mills (supra) and Bajaj Auto Ltd (supra) that for refund of the duty a separate show cause notice under Section 11A of the Act is reviewed and that too within the time limit prescribed under Section 11A and that as such notice under Section 11A must precede within the time limit prescribed under....
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.... Paints (India) Ltd. (supra). 8. As observed hereinabove, once the order in original sanctioning the refund came to be set aside in a proceeding under Section 35E of the Act and the proceedings under Section 35E was initiated within the time prescribed under Section 35E of the Act, thereafter there is no question of any further notice under Section 11A of the Central Excise Act as observed by the Tribunal affirmed by the High Court on quashing and setting aside the order in original sanctioning the refund in exercise of powers under Section 35E of the Act which otherwise is prescribed under the Act within the time stipulated under Section 35E of the Act, thereafter necessary consequence shall follow and thereafter there is no question of any refund pursuant to order in original. 9. In view of the above and for the reasons stated above, present appeal succeeds. The impugned judgment and order passed by the High Court and that of the Tribunal are hereby quashed and set aside and the order passed by the Commissioner (Appeals), Mumbai dated 13.05.2005 is hereby restored. However, in the facts and circumstances of the case there is no order as to costs. ....
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....iew thereof, I hold that the impugned orders are not sustainable. 5.2 Without prejudice to the above finding, I find that in the present matter the Lower Authorities held that number of logs mentioned in the sales invoices do not match with the number of logs declared in the Bills of Entry in some cases. In some cases, number of logs have exceeded the log numbers than declared in the Bills of Entry and in some cases log numbers reduced as against declared in the Bills of Entry. However, I noticed that Appellants after importing logs, cut and sawn it in two or more pieces for transportation purpose as well as meeting with the requirements of the customers. Therefore, number of logs would increase than the declared in the Bill of Entry. Further Appellant sold logs in the same form or sawn form on CBM. They had never focused on number of logs sold to customers. They Imported many consignments under various Bills of Entry. The Appellant sold goods based on CBM. Hence, in some of the cases, number of logs would have been decreased while selling the product. But, the Appellants sold duty paid imported logs on payment of VAT/ Sales Tax through sales invoices in domestic market. I....
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....d Tax as may be applicable. Before transportation of timber, they were required to reduce its size since the RTO rules did not permit transportation of logs longer than 40 feet. If only for cutting length of the logs, which were in excess of 40 feet, sawing operations were carried out and after some cleaning and scaring was done, timber logs of smaller pieces were sold, we do not see how respondents can be stated to have breached any of the conditions of the Exemption Notification dated 14-9-2007." The above decision was further challenged by the Revenue whereby the Hon'ble Supreme Court dismissed the appeal preferred by the Revenue which has been reported in 2018 (360) E.L.T. 790 (S.C.). The Hon'ble Supreme Court observed in para 2 as under: "2. The Learned Counsel for the appellant-Revenue has sought to dislodge the view taken by the Customs, Excise and Service Tax Appellate Tribunal and the High Court by contending that the subsequent sale must be in the same form in which the goods were received on import. The contention advanced on behalf of the appellant-Revenue is not supported by a plain reading of the exemption notification which even if construed....