M/S. Prabhat Steel Traders Pvt. Ltd vs Commissioner Of Customs (Ep) Mumbai

(Arising out of Order-in-Appeal No. 333/MCH/AC/Refund (Exp.)/2012-13 dt. 5.6.2013 passed by the Commissioner of Customs (Appeal), Mumbai -I )

For approval and signature: Honble Mr. P.S. Pruthi, Member (Technical)

============================================================

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. Prabhat Steel Traders Pvt. Ltd.

:

Appellant

VS

Commissioner of Customs (EP) Mumbai. :

Respondent

Appearance

Shri Brijesh Pathak, Advocate for Appellant

Shri M.K. Mall, Assistant Commissiner (A.R) for respondent

CORAM:

Mr. P.S. Pruthi, Member (Technical)

Date of hearing : 20/02/2015 Date of decision : 20/02/2015

ORDER NO.

This appeal is against the Order-in-Appeal passed by Commissioner (Appeals), who agreed with the rejection of refund of Rs.1,14,692/- by the Assistant Commissioner.

2. The facts are that the appellant filed a refund claim on 13.2.2012 in respect of SAD paid on the imported goods, namely, Prime Hot Rolled Steel Sheets/Cold Rolled Steel Sheets. In support of their claim all the documents required to be submitted in terms of Notification No. 102/2007 dt. 14.9.2007 such as Work Sheet, Sales Invoices, Documents evidencing payment of appropriate VAT/ST, certificate of Chartered Accountant certifying that burden of SAD has not been passed by the importer, self declaration of the importer that he has not passed on incidence of SAD, certificate of Chartered Accountant certifying co-relation of payment of VAT/ST on imported goods with invoices of sales, were submitted. Para 6 of the Order of Commissioner (Appeals) reproduces Para (viii) of Board Circular No. 16/2008 dated 13.10.2008 which required that in case of sale of imported goods through consignment agents, the refund of 4% CVD shall be granted subject to the condition that the consignment agent has been authorized to sell the imported goods in terms of the agreement entered into between the importer and the consignment agent. According to the Commissioner (Appeals), the agreement between the consignment agent and the importer does not contain the signature of the witnesses and therefore, is not legally valid. Therefore, he agreed with the rejection of the refund claim.

3. Heard both sides and considered the submission.

4. In this case, the only ground for rejecting the refund is that the agreement between the importer and the consignment agent does not contain the signature of the witnesses.

4.1. I have seen the copy of the Agreement. It bears signatures of both the importer, being the first party, and the consignment agent being the second party. There is no requirement in the statutory provisions that the Agreement should bear the signatures of the witnesses. In fact, the notification providing for refund does not require that the appellant should submit a copy of the agreement. The finding of Commissioner (Appeals) is indeed very strange and totally unwarranted. In the circumstances, the appellant have submitted all required documents for processing and sanctioning of the refund claim.

5. Accordingly, the appeal is allowed. Refund is allowed with consequential relief, in accordance with law.

(Pronounced & Dictated in court )

(P. S. Pruthi) Member (Technical)

Sm

??

??

??

??

4