Mridul Timbers vs Commissioner Of Customs

C/1523/2011-SM, C/1581/2011-SM, C/1582/2011-SM, C/1584/2011-SM, C/1631/2011-SM, C/1639/2011-SM

[Arising out of Order-in-Appeal No. 60/2011 dated 03/03/2011 passed by the Commissioner of Customs, Cochin] [Arising out of Order-in-Appeal No. 68/2011 dated 09/03/2011 passed by the Commissioner of Customs, Cochin] [Arising out of Order-in-Appeal No. 61/2011 dated 03/03/2011 passed by the Commissioner of Customs, Cochin] [Arising out of Order-in-Appeal No. 123/2011 dated 25/04/2011 passed by the Commissioner of Customs, Cochin] [Arising out of Order-in-Appeal No. 81/2011 dated 14/03/2011 passed by the Commissioner of Customs, Cochin] [Arising out of Order-in-Appeal No. 122/2011 dated 25/04/2011 passed by the Commissioner of Customs, Cochin]

For approval and signature: HON'BLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

Mridul Timbers Veenginissery, Paralam P.O. Thrissur - 680 575 Appellant(s)

Popular Timbers XXIV/1617D, Ground Floor, CPOA Building, Indira Gandhi Road, Willingdon Island, Cochin  682 003 Appellant(s) Indian Timbers C.P-4/454, Kattampally Road, Chirackal, Puthiyatharu, Kannur - 670 001 Appellant(s) Aiswarya Timbers Venginissery, Paralam P.O. Thrissur  680 575 Appellant(s) V.U.S Timbers 8/546-A, Perumattom, Puthupady P.O., Muvattupuzha - 686 673 Appellant(s) V.S. Export & Import Vi/567-A, Perumattom, Puthupady P.O., Muvattupuzha - 686 673 Appellant(s) Versus Commissioner of Customs Custom House Cochin  682 009 Kerala Respondent(s)

Appearance:

Mr. M. Balagopal, Advocate Room No. 301, 4th Floor, DD Vyapar Bhavan, K.P. Vallon Road, Kadavanthra, Cochin - 682 020 Kerala For the Appellants

Mr. Pakshi Rajan & Mr. N. Jagdish, AR For the Respondents

Date of Hearing: 11/03/2015 Date of Decision: 11/03/2015 CORAM:

HON'BLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER

Final Order Nos. 20612-20617 / 2015

Per: B.S.V. MURTHY

In all these cases the issue involved is whether the appellants are eligible for refund of SAD claimed in respect of timber imported and sold by them in the domestic market. The reason for rejection of the claims is that the appellants failed to make a declaration in the invoice for sale in the domestic market that the purchaser of the timber cannot avail cenvat credit. Both sides agree that the issue is covered by the decision of the Larger Bench in the case of Chowgule & Company Pvt. Ltd. Vs. CC & C.Ex. [2014 (306) E.L.T. 326 (Tri.-LB)] wherein it was held that endorsement on invoice was merely a procedural requirement and its object could be achieved when duty element itself was not specified in the invoice. On this basis it was held that mere non-making of endorsement could not undermine purpose of exemption. It was concluded by the Tribunal that the trader who paid SAD on imported goods and discharged VAT/Sales Tax liability on subsequent sale and who issued commercial invoices without indicating any details of duty paid, was entitled to the benefit of exemption under Notification No. 102/2007-Cus. notwithstanding the fact that he made no endorsement that credit of duty is not admissible on commercial invoices. Learned counsel submits that in this case also, no tax element was separately indicated and the facts and circumstances are similar to the one considered by the Tribunal Larger Bench. Therefore on this issue the appeals have to be allowed. In appeal filed by V.U.S Timbers No. C/1631/2011, in addition to the ground of non-declaration of cenvatability, the conversion factor also is another ground taken for rejecting the refund claim. This has been dealt with in the order passed today itself in the case of M/s. E. Oriental Timbers and others and further the issue is covered by the decision of this Tribunal in the case of CC, Mangalore Vs. Royal Timbers [2014 (313) E.L.T. 305 (Tri.-Bang.)]. Therefore on this ground also the impugned order cannot be sustained.

2. In Appeal No. C/1582/2011, in addition to non admissibility analysis relating to cenvat credit, another ground had been taken for rejecting the refund claim. This ground is that refund claims were not filed within one year from the date of payment of SAD to Customs Department. In the case of Indian Timbers, date of payment of duty was 13.05.2008 and date of filing the refund claim is 13.05.2009. According to General Clauses Act, for calculation of one year, the date on which duty was paid has to be omitted since it has to be calculated from the date of payment. Once it is done, the calculation of one year period has to be made from 14.05.2008 and in such a case the claim has to be considered as filed on the date on which one year would have been over. Therefore the claim has to be considered as filed within the period of limitation. Therefore the appeal has to be allowed and is allowed.

3. On the basis of above observations, all the appeals are allowed with consequential relief, if any, to the appellants.

(Order pronounced in open court)

(B.S.V. MURTHY) TECHNICAL MEMBER

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