Order date: 29th September 2022

Facts: 

• The applicant namely, M/s Dell International Services India Pvt. Ltd. is an importer-trader, they import computers and resale the same.
• The appellant paid 4% SAD (Special Additional Duty) which is levied instead of sales tax, by way of equalization levy under the Customs Tariff Act. To avoid the double taxation on the importers, where the importers have resold the goods on payment of VAT/sales tax, a refund mechanism is provided vide Notification No. 102/2007-Cus, for a refund of the SAD paid at the time of import.
• In order to avoid the double taxation on the importers, where the importers have resold the goods on payment of VAT/sales tax, refund mechanism is provided vide Notification No. 102/2007-Cus, for refund of the SAD paid at the time of import.
• The appellant filed a refund claim aimed for a total amount of Rs. 7,75,216/- with respect to 70 bill of Entry.
• The refund claim was rejected vide OIO only on the ground that appellant have not complied with condition no. 2(b) of the said Notification r/w CBEC Circular No. 6/2008-CUS & Circular No. 16/2008-CUS.
• The Appellant contended that they have resold the goods on commercial invoice on payment of VAT, they are not a registered dealer under the Central Excise provisions, hence they cannot pass on SAD to their buyer and hence, the endorsement as contemplated in terms of para 2(b) of the notification is merely procedural in nature, having no material consequences in the facts and circumstances.
• Aggrieved, the Appellant has filed this appeal.

Issue:

• Whether to avail the benefit of Notification No. 102/2007, condition 2(b) of the notification is mandatory for compliance, being a trader who cleared the goods on the strength of commercial invoices.

Order:

• The authorities observed that a refund of SAD paid should not be denied merely because the required endorsement was not made as that would constitute only a technical infraction.
• Further, in the case of a trader, who is not registered with the department and thus is not authorized to issue a convertible invoice, and who does not indicate in the commercial invoice, the details of SAD paid, the question of taking any credit would not arise in as much as commercial invoice issued by a nonregistered trader is not a document, on the strength of which Cenvat credit can be availed. Further, in the absence of duty particulars in the invoice, the question of taking any Cenvat credit would not arise.
• The authorities relied on the interpretation of the Larger Bench of this Tribunal in the case of Chowgule & Company Pvt Ltd and allowed this appeal and set aside the impugned order, the Adjudicating Authority is directed to grant the refund along with interest as per rules.