Cc (Prev.) vs M/S Mrinal International
- CitationCustoms Appeal No. 654 of 2009
Ratio decidendi
The rule this decision rests on
Where an exemption or refund notification conditions relief on the importer certifying on the sale invoice that no credit of the additional duty under sub-section (5) of Section 3 of the Customs Tariff Act, 1975 is admissible, a stamp on each invoice reading "No credit of the Special Additional Duty available" satisfies that condition, because the additional duty under sub-section (5) is commonly known as the Special Additional Duty and the stamp conveys the same certification. Even where an exemption notification must be strictly construed in accordance with binding Supreme Court authority, the condition is treated as fulfilled if the invoices, read as a whole, meet its substance, so that the Revenue's objection that the invoices did not expressly refer to the sub-section (5) duty by its statutory description fails.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
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?
Customs Appeal No. 654 of 2009
(Arising out of order in appeal No. 49/Cus/LDH/2009 dated 28.07.2009 passed by the Commissioner (Appeals), Customs & Central Excise, Chandigarh).
CC (Prev.) Appellant
Vs.
M/s Mrinal International Respondent
Appearance:
Sh. Govind Dixit, DR for the appellant-Revenue
None for the assessee
Coram: Honble Mr. R. K. Singh, Member (Technical)
Honble Ms. Sulekha Beevi C.S. Member (Judicial)
Final Order No.52577 / 2015
Per: R. K. Singh:
Appeal has been filed by the Revenue against order in appeal dated 31.07.2009 in terms of which the order-in-original granting refund of Rs.50599/- was upheld and Revenues appeal was dismissed. The issue involved in this case is refund of additional duty of customs levied under sub-section of Section 5 of the Customs Tariff Act, 1975 in terms of Notification No. 102/2007-Cus. dated 14.09.2007. The only ground on which Revenue has filed this appeal is that Condition No. (b) of the Notification No. 102/2007-Cus was not fulfilled inasmuch as the importer had not specifically indicated in the invoice that in respect of goods covered therein no credit of additional duty of customs levied under sub-section (5) of Section 3 of the Customs Tariff Act, 1975 shall be admissible.
2. We find that the Commissioner (Appeals) in the impugned order (para 7) has observed as under:-
7. The respondent have contended that the condition 2(b) of Notification No. 102/07-Cus. dated 14.09.2007 states that a stamp be affixed on the invoice indicating specifically that no credit of Customs levied under sub-Section (5) of Section 3 of the Customs Tariff Act, 1975 shall be admissible and that additional duty of Customs levied under sub-Section (5) of Section 3 of Customs Tariff Act, 1975 is also called as Special Additional duty and accordingly a stamp No credit of the Special Additional Duty available was affixed on all the invoices which meets the requirements of Rule 2(b) of the said Notification. In support of their above contention the respondent have referred to Boards Circular No. 6/2008-Cus. dated 28.04.2008. As per condition 2(b) of Notification No. 102/07-Cus dated 14.09.2007, the importer is required to give certificate that no credit of the Additional duty of Customs levied under sub-Section (5) of Section 3 of the Customs Tariff Act, 1975 shall be admissible on the invoices for sale of the said goods. Further, while explaining the procedure to be adopted for refund of 4% Additional Duty of Customs in pursuance of Notification No. 102/2007-Cus. dated 14.09.2008, it has been, inter-alia, clarified in para 7.2 of Boards Circular N0.
6/2008-Cus. dated 28.04.2008 that a stamp on their invoice (to state that no CENVAT credit is admissible) should suffice for the purpose of para 2(b) of said Notification. On perusal of the relevant sale invoices issued by the respondent in this case and enclosed alongwith the departmental appeal, it is observed that the same bear the stamp No credit of the Special Additional Duty available. In this regard, the respondent explained that additional duty of Customs levied under sub-section (5) of Section 3 of Customs Tariff Act, 1975 is also called as Special Additional duty and no other duty is levied under sub-section (5) of Customs Tariff Act, 1975. Considering the above explanation of the respondent and in view of clarification given in Boards Circular No. 6/2008-Cus. dated 28.4.2008, it is held that stamp affixed on the invoices in question meets with the requirement of condition 2(b) of Notification No. 102/2007-Cus. dated 14.09.2007 and objection raised in the departmental appeal in this regard does not sustain. Accordingly, the present appeal filed by the department does not succeed and is liable to be rejected.
In view of foregoing, appeal filed by the department is rejected.
3. We have also perused the invoices and found that in the said invoices the price is mentioned alongwith 4% VAT and no customs duty is shown or mentioned therein. In addition to that each invoice has a stamp of No Credit of the Special Additional Duty available. We agree with the contention of the respondent before Commissioner (Appeals) that the additional duty of customs under sub-section (5) of Section 3 of Customs Tariff Act, 1975 is commonly known as Special Additional Duty. Thus, we find that the Commissioner (Appeals) has adequately discussed this issue and we agree with his finding that the stamp on the invoice to the effect that No Credit of Special Additional Duty Available satisfies the requirement of the said Condition b of Notification No. 102/2007-Cus. referred to earlier. Revenue drew our attention to the Supreme Court judgment in the case of State of Jharkhand vs. Ambay Cements 2004) (178) ELT 55 (SC) to advance the proposition that exemption notification needs to be strictly construed and to the judgment of Supreme Court in the case of Mihir Textiles Limited vs. Collector of Customs, Bombay 1997 (92) ELT 9 (SC) in which it was held that exemption benefit depending upon the satisfaction of certain conditions cannot be granted unless such conditions are fulfilled. We fully bow to the said binding decisions of the Supreme Court. Revenue also cited the judgment in the case of Astra Zeneca Pharma India Limited vs. Commr. of Cus. New Delhi 2013 (294) ELT 574 (Tri. Del.) in which it was stated inter-alia that importer of goods claiming refund has an obligation under law to declare on the invoice itself that the goods sold under invoice shall not enjoy credit of additional duty of Customs levied under Section 3 (5) of Customs Tariff Act, 1975. We find that as discussed above, in the present case the condition b of the Notification No. 102/2007-Cus is fully complied with even on the yardstick of strict construction of the said exemption notification. In the circumstances, we do not find any merit in Revenues appeal and the same is therefore dismissed.
(R. K. Singh)
Member (Technical)
(Sulekha Beevi C.S.)
Member (Judicial)
Pant
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