M/S. Ls Cable India Pvt. Ltd vs C.C. New Delhi (Import & General)
- CitationAppeal No. C/52264/2015-CU(SM)
Ratio decidendi
The rule this decision rests on
Where a refund claim is made under a notification that contains no condition restricting the number of claims in a calendar month, a departmental circular imposing such a limit cannot be relied upon to reject the claim. Where the revenue raises an objection to the refund claim on a ground not decided by the adjudicating authority, namely whether the claimant has actually paid VAT or CST corresponding to the SAD sought to be refunded, the appellate authority may set aside the impugned order and remand the matter to the adjudicating authority to verify that fact, rather than deciding it itself.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. CC(A)/CUS/124/2015 dated 05.02.2015 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), New Delhi].
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1 Whether Press Reporters may be allowed to see 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 of the Order?
4 Whether Order is to be circulated to the Departmental authorities?
M/s. LS Cable India Pvt. Ltd. .Appellants
Vs.
C.C. New Delhi (Import & General) .Respondent
Appearance:
Shri S.K. Pahwa & Shri Rohan Pahwa, Advocate for the Appellant
Shri R.K. Grover, DR for the Respondent
CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial)
Date of Hearing: 25.08.2015
FINAL ORDER NO. 52693/2015-CU(SM)
Per Ashok Jindal:
In this appeal the refund claim of SAD was claimed by the appellant under notification no. 102/2007-CUS dated 14/09/2007 which was rejected by the lower authorities on the premises that in the month of July 2013 the appellant filed two refund claim in violation of the CBEC Circular no. 6/2008-CUSTOMS dated 28.04.2008 which provides that assessee is required to file one refund claim in one calendar month.
2. As the appellant has filed refund claim under notification no. 102/2007-Cus ibid wherein there is no condition to file refund claim once in a month. Therefore, refund claim cannot be rejected relying on the CBEC circular cited herein above. Therefore, I hold that appellant is entitled to claim refund of SAD paid by them.
3. At this stage Ld. AR raised the objection that the invoice showing SAD not having the corresponding invoices accompanied with the Bill of Entry which evidence the payment of VAT by the appellant. In these circumstances, it would be appropriate and in the interest of justice to remand matter back to the adjudicating authority to verify the fact whether appellant has paid VAT / CST at the time of clearance of the goods by them for which they have paid SAD at the time of importation of the goods. In these circumstances, impugned order is set aside. Matter is remanded back to the adjudicating authority to ascertain the fact whether the appellant has paid CST or VAT for which they are claiming refund of SAD paid by them.
4. Appeal is disposed of in the above terms.
(Dictated and pronounced in the open court)
(Ashok Jindal) Member (Judicial)
Bhanu
2
C/52264/2015-CU(SM)
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