C.C. (Import & General) vs Sigma Freudenburg Noke Pvt. Ltd

Arising out of the order in appeal No.CC(A)/CUS/I & G/73/10 dated 28.6.2010 passed by the Commissioner of Customs (Appeals), New Delhi.

For approval and signature:

Honble Mr. R.K. Singh, Technical Member

Honble Ms. Sulekha Beevi C.S., Judicial Member

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

C.C. (Import & General), .. Appellant

New Delhi

Vs.

Sigma Freudenburg Noke Pvt. Ltd. . Respondent

Appearance:

Present Shri Rajeev Tandon, A.R. for appellant /Revenue

Present Shri Sudeep Singh with Shri Jatin Mahajan, Advocates for the respondent

Coram: Honble Mr. R.K. Singh, Technical Member

Honble Ms. Sulekha Beevi C.S., Judicial Member

Final Order No. 52560/2015

Per R.K. Singh:

This appeal was filed by Revenue against the Order-in-Appeal dated 28.6.2010.

2. The facts of the case are as under:

The primary adjudicating authority rejected the refund claim of the respondent who was importer as well as dealer of the goods imported under several Bills of Entry essentially on the ground that the respondent had taken credit of the SAD in its RG 23D account and therefore was ineligible for the refund thereof in terms of the Notification No.102/2007-Cus dated 14.9.2007. The primary adjudicating authority also took note of the letter of the Superintendent which stated that the respondent herein had been issuing invoices in which it had passed on Additional Duty of Customs (SAD) to the respective buyers.

3. The Commissioner (Appeals) while disagreeing with the primary authoritys order observed that  From the perusal of sample invoices pertaining to the subject refund claim and submitted at the time of personal hearing, it is clear that the appellant issued cenvatable invoices showing details of duties separately under headings and it does not contain amount of Additional Duty of Customs. The sum total of all duties shown separately is given as passed on to the buyer. Further every invoice bears the statutory declraration that  In respect of the goods covered herein, no credit of additional duty of customs levied under Section 3(5) of the Customs Tariff Act, 1975 shall be admissible .Commissioner (Appeals) also noted that benefit of SAD was not actually passed on.

4. The Revenue is in appeal on the ground that Commissioner (Appeals) has come to the finding that declaration to the effect that credit of additional duty of customs is not available is given on the invoices and that benefit of SAD was not passed on only on scrutiny of sample invoices, and that the very fact that credit of SAD was taken in RG 23D register disqualified the respondent for the refund thereof. It also contended that the Commissioner (Appeals) in effect has remanded the case to the lower adjudicating authority while the power of remand by the Commissioner (Appeals) was taken away with effect from 11.5.2001 by amendment to the Section 128A of the Customs Act, 1962.

5. Ld. Advocate for the respondent on the other hand stated that Superintendents letter stating that it had passed on the benefit of SAD upto 13.4.2008 was in respect of different bills of entry and did not pertain to the bills of entry in respect of which the refund claim was filed and that declaration to the effect that SAD credit is not available was made on all the invoices covering the goods in respect of which refund was filed.

6. We have considered the submissions of both sides. We find that Assistant Commissioner (Refund) has passed the following order:

 O R D E R

In view of the above discussion & findings, I hereby reject the above said three refund claims totaling to Rs.1,110,749.94 filed by M/s Sigma Freudenberg Nok Pvt. Ltd, Plot No.12, Udyog Vihar, Phase IV, Gurgaon  122015, under Section 27 of the Customs Act, 1962 read with Notification No.102/07-Customs dated 14.09.2007, as amended.

The Commissioner (Appeals) in the impugned order has ordered as under:

 (7) In view of the above , the impugned order is set aside and the concerned Adjudicating authority is directed to further process, quantify and sanction the refund claim as above.

We are of the view that this order of Commissioner (Appeals) amounts to remanding the case to the primary adjudicating authority which the Commissioner (Appeals) is not empowered to do as has been held by the Honble Supreme Court in the case of MIL India Ltd. vide its judgment dated 1.3.2007 in Civil Appeal No.6988/2005. However, merely because the respondent took credit of SAD in RG 23D register does not ipso facto amounts of passing it on to its buyers and deprive it from claiming refund thereof if the conditions contained in Notification No.102/2007-Cus are satisfied. We note that the Commissioner (Appeals) has recorded a finding that on the basis of sample invoice it is clear that the respondent issued invoices which contained a declaration which fulfilled the requirement of the related condition of Notification 102/2007-Cus. Revenue contends that such observation should have been recorded only after due scrutiny of all the relevant invoices. We find this contention valid, as specially in the case of refund, it is necessary to scrutinize all the relevant records.

7. In the light of the above analysis we remand the case to the Commissioner (Appeals) to decide it afresh at his level (without remand to the primary adjudicating authority) and determine the amount of refund admissible and then direct the Assistant Commissioner conerned to grant the amount of refund so determined by him. He shall grant an opportunity to the respondent of being heard before deciding the issue. As the matter is already old, we expect the Commissioner (Appeals) to complete the proceedings within three months.

(R.K. Singh)

Technical Member

(Sulekha Beevi C.S.)

Judicial Member

scd/

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