Case Law Details
Technova Imaging Systems Pvt. Ltd. Vs Commissioner of Customs (CESTAT Mumbai)
Refusal of SAD to the Appellant-importer by the Refund Sanctioning Authority that has received concurrence of the Commissioner (Appeals) in the second round of litigation is assailed in this appeal.
The gist of the order of Commissioner (Appeals) is that goods imported and goods sold, though are of different brand names are one and same which is verifiable from the item code and item description and such infraction of procedural technically cannot defeat the very object and purpose of exemption Notification [reliance was placed on the judgment of Hon’ble Supreme Court in Mangalore Chemicals & Fertilisers Ltd. vs. Deputy Commissioner of Commercial Taxes & Ors. reported in 1991 (55) ELT 437 (SC)]. Further, he had asked the adjudicating authority to verify the claim of refund with reference to requisite documents and pass an appropriate order.
With this limited purpose matter went back to the adjudicating authority once again, whose primary duty was to verify if through documentary proof concerning import and sale of imported goods in the local market could be established and then sanction the refund as per Notification No. 102/2007. However, he had exceeded his jurisdiction in starting a de novo proceeding.
Refund of SAD is primarily governed by Notification No. 102/2007 and guided by its clarificatory Circular issued from time to time. Learned Commissioner (Appeals) in the first round of litigation had already given a finding that claim of refund of applicant survives and thereafter review of the said order by the adjudicating authority in the limited remand for verification of documents so as to ascertain that the same is in conformity to law, is beyond the power of the adjudicating authority, as it can only be exercised by the appellate authority. Further endorsement of such adjudication order by way of dismissal of appeal preferred before the Commissioner (Appeals) cannot be said to be a reasoned decision apart from the fact that certificates of co-relation of imported goods and goods sold in the local market were presented to both the adjudicating authority and the Commissioner (Appeals), which as per Circular No. 06/2008-Cus. dated 28.04.2008 would meet the purpose of proof for sanction of SAD refund.
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