Automark Industries (I) Pvt. Ltd vs Commissioner Of Central Excise & ...

(Arising out of Orders-in-Appeal No. SR/110/NGP/2010, No. SR/112/NGP/2010 and No. SR/111/NGP/2010 dated 29.3.2010 passed by Commissioner of Central Excise & Customs (Appeals), Nagpur)

For approval and signature:

Honble Mr. P.K. Jain, Member (Technical)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the :

CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

4. Whether Order is to be circulated to the Departmental : Yes authorities?

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Automark Industries (I) Pvt. Ltd. Appellant Vs. Commissioner of Central Excise & Customs, Nagpur Respondent

Appearance: Shri H.G. Dharmadhikari, Advocate, for appellant Shri D.K. Sinha, Assistant Commissioner (AR), for respondent

CORAM: Honble Mr. P.K. Jain, Member (Technical)

Date of Hearing: 9.10.2015 Date of Decision: 9.10.2015

ORDER NO

Common issue is involved and so all the three appeals are being taken up together.

2. Brief facts of the case are that the appellant has filed refund claim relating to 4% SAD. The case was processed. After processing the case, the refund claim was found to be admissible. However, the same was transferred to Consumer Welfare Fund under Section 27 of the Customs Act and on the grounds of unjust enrichment. The reasons advanced in the impugned order as well as the order-in-original are that the appellant has not submitted any documentary evidence and not substantiated the Chartered Accountants certificate.

3. Heard both sides.

4. I find that the appellant has produced copy of the invoices which clearly indicate that credit of 4% SAD is not admissible. I also find that the invoices indicate the basic value and 12.5% VAT. It does not indicate separately SAD or any other component of import duty. In the accounts, the appellant has shown the 4% amount of SAD as receivable under assets. The Chartered Accountant has also certified the same. The only objection raised in the impugned order is that the appellant has not submitted the invoices showing the price of the goods and indicating the amount of each duty paid thereon forming part of the goods in terms of Section 28C of the Customs Act, 1962 so as to justify that incidence of duty has not been passed on to any customer/person. I also find that the appellant is not a registered dealer and has not sold the entire consignment on the bill of entry itself, but the goods have been sold on the invoices and the invoices indicate the price at which the goods are being sold. It also indicates the amount of VAT that is being paid. Further, the Chartered Accountant has given the requisite certificate. The balance sheet shows the amount of 4% SAD as receivable under the asset category. Under the circumstances, it cannot be said that the 4% SAD has been passed on to the consumer. The bar of unjust enrichment will not be applicable. I also note that this Tribunal vide order No. A/480/14/SMB/C-IV dated 7.3.2014 in appellants own case, has allowed the refund for the earlier period.

5. All the three appeals are allowed with consequential relief.

(Pronounced in Court)

(P.K. Jain) Member (Technical)

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