Schneider Electric It Business vs Commissioner Of Customs And Service ...

[Arising out of Order-In-Appeal No. 398/2013 dated 22/10/2013 passed by the Commissioner of Customs, Bangalore ]

For approval and signature:

HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL 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

Schneider Electric IT Business 1st Floor, Plot No.183-187 & 254-258, Bommasandra Jigani Link Road, 4th Phase, Bommasandra Industrial Area, Bangalore  562 106 Karnataka Appellant(s) Versus Commissioner of Customs and Service Tax, Bangalore C.R. Building, Queens Road, P.B. No. 5400, Bangalore  560 001 Karnataka Respondent(s)

Appearance:

Ms. Neetu James, Advocate World Trade Centre No.404-406, 4th Floor, South Wing Brigade Gateway Campus No.26/1, Dr. Rajkumar Road, Bangalore - 560 055 Karnataka For the Appellant

Mr. Mohd Yusuf, AR For the Respondent

Date of Hearing: 04/02/2015 Date of Decision: 04/02/2015 CORAM:

HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER

Final Order No. 20292 / 2015

Per: ARCHANA WADHWA

A very short issue is involved in the present appeal. The appellants have been denied the refund of Special Additional Duty (SAD) in terms of Notification No. 102/2007-Cus. dated 14.09.2007 on the sole ground that though the appellants have made an endorsement in the invoice as regards non-passing of the credit of SAD, the said endorsement is not in the format prescribed in the notification.

2. I have examined the invoices which bear an endorsement that no credit of SAD would be available to the buyer of the goods. The Revenues only objection is that the language used for such endorsement is different than the language used in the Notification, prescribing endorsement.

3. I find that the said dispute has been the subject matter of various decisions of the Tribunal. Even in cases where there was no endorsement in terms of the Notification but SAD was shown as zero Tribunal has held that it is sufficient compliance with the condition of the Notification inasmuch as the buyer cannot avail the cenvat credit of the same. Reference in this regard is made to Tribunal decision in the case of Ruchi Acroni Industries Ltd. Vs. CC (Import), Mumbai [2011 (272) E.L.T. 287 (Tri.-Mum.)] as also to another decision in the case of Equinox Solutions Ltd. Vs. CC (Import) Mumbai [2011 (272) E.L.T. 310 (Tri.-Mum.)]. In fact I find that the issue stands decided by the Larger Bench decision of the Tribunal in the case of Chowgule & Company Pvt. Ltd. Vs. CCE [2014 (306) E.L.T. 326 (Tri.-LB)]. It stands held that non-declaration of SAD in commercial invoice is affirmation that no cenvat credit thereof would be available. The same satisfied the condition in para 2(b) of Notification No. 102/2007-Cus. requiring endorsement on invoice that no credit was admissible. Endorsement on the invoice is only a procedural condition and once its object is achieved, non-endorsement cannot be held to undermine the purpose of the notification.

4. By applying the ratio of the above decisions to the facts of the present case, I find that it is not a case of non-endorsement. There is admittedly an endorsement on the invoices, thus satisfying the conditions of the notification. Difference in use of language cannot be adopted as a reason for denial of the refund of SAD. Accordingly I set aside the impugned order and allow the appeal with consequential relief to the appellant.

(Order pronounced in open court)

(ARCHANA WADHWA) JUDICIAL MEMBER

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