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M/S. Shreenathji Enterprises vs Commissioner Of Customs (Imports), ...

Customs Excise and Service Tax Appellate Tribunal10 April 2015

Ratio decidendi

The rule this decision rests on

Future sale of goods, under which goods are sold in expectation of their arrival, is a good sale under the Sale of Goods Act, 1930, and a refund claim cannot be rejected merely because the sale invoices predate the out-of-charge date on that ground alone. A refund claim cannot be rejected mechanically for want of a brand name on the invoices; the authority must examine whether the claimant held stock of other brands at the time of sale, and an objection based on that ground can be sustained only on positive evidence, failing which it cannot stand. The adjudicating authority cannot rely simply on a Chartered Accountant's certificate to reject a refund claim for want of correlation between the certificate and the bills of entry; it has a duty to test the basic evidence by examining the invoices and records, and refund is admissible to the extent of sales tax shown to have been deposited against sales of the imported goods, upon satisfaction of an integral connection between the invoices and the imported goods.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNALSOUTH ZONAL BENCH, CHENNAIC/EH/42425/2014 and C/42226/2014

[Arising out of Order-in-Appeal No.C.Cus. No.1194/2014, dated 21.07.2014 passed by the Commissioner of Customs (Appeals), Chennai]

M/s. SHREENATHJI ENTERPRISES APPELLANT

Versus

COMMISSIONER OF CUSTOMS (IMPORTS), CHENNAI RESPONDENT

Appearance:

For the Appellant Shri Hari Radhakrishnan, Adv.

For the Respondent Ms. Indira Sisupal, AC (AR)

CORAM:

Honble Shri D.N. Panda, Judicial Member

Date of hearing/decision 10-04-2015

FINAL ORDER NO. 40403 / 2015

When this application for early hearing is made, record was examined and found that appeal can be disposed today. For that reason, appeal itself is disposed by this order.

2. Refund was rejected by the Authority below stating following reasons:-

(i) Date of invoices were prior to the date of out of charge;

(ii) The brand name of paraffin wax did not appear in invoices; and

(iii) The Chartered Accountant Certificate did not disclose relation between import and sale.

2. So far as first reason is concerned, sale of goods expecting arrival of goods is nothing uncommon since future sale is good sale under the provisions of Sale of Goods Act, 1930. Therefore, that reason stated by Authority below is devoid of merit for which that is rejected. So far as the second objection is concerned, there should not be rejection of the refund mechanically without examining whether the appellant was in possession of stock of any other brand at the time of making sale. If there is positive evidence, then, the objection of department shall sustain. In absence of such evidence and negative finding, therefore, that objection also fails to stand. So far as the third reason of objection is concerned, it is stated that there was no co-relation between the Chartered Accountant Certificate and the Bil of Entries. That also does not stand to reason without any enquiry being conducted by Authority. He should not simply rely on the Chartered Accountants Certificate. His duty is to test the basic evidence. Therefore, learned Adjudicating authority is directed to conduct examination of all the invoices which were subject matter of sale of the imported goods and appearing in Adjudication order with the assistance of record of the appellant to satisfy whether the goods imported were sold and composition of sale price. It is to be ensured that refund relates to sale of goods imported by 21 Bills of Entries through invoices depicted in the Order-in-Original. If he is satisfied that there is integral connection between the invoices and sale of the goods imported and the invoices disclosed, appropriate amount of sales tax being deposited in to Treasury of the State Government evidenced by respective challan as well as sales tax return, then refund to the extent of deposit shall be admissible.

3. Appellant is entitled to fair opportunity of hearing in terms of the above guidelines for expeditious disposal of the matter and refund of the amount if any, that may arise. Since the appeal is disposed, MA (EH) have become infructuous, for which that is also disposed.

4. Appeal remanded to Adjudicating authority to the limited extent as indicate above. (Dictated and pronounced in open court)

(D.N. PANDA) JUDICIAL MEMBER

ksr 15-04-2015

DRAFT Remarks

I II III

Date of dictation 10.04.2015

Draft Order - Date of typing 11.04.2015 13.04.2015

Fair Order Typing 15.04.2015

Date of number and date of dispatch

5 C/EH/42425/2014 and C/42226/2014

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