Order Date- 20 May 2022

Facts:

• The appellant, M/s Surya Roshini Ltd., had filed the refund claim for Rs. 6,23,312/- of Additional Duty of Customs @ 4%, paid by them at the time of import of the goods, under Notification No. 102/2007-Cus dated 14.09.2007. The Sanctioning Authority taking a reference of Board Circular No. 27/2010-Customs dated 13.08.2010 contended that since the appellant had paid the SAD by way of debiting in their MEIS scrip, the refund was not maintainable. 
• Aggrieved, Appellant preferred an appeal before commissioner (Appeals) Ahmedabad, who remanded the matter back to the proper officer.
• The Adjudicating Authority then vide order in original held that as they have paid 4% SAD by way of debit in MEIS they became ineligible for refund of 4% SAD as per Circular No. 18/2013-Custom dated 29.04.2013. The adjudicating authority on scrutiny of the invoices also found that no endorsement/rubberstamp/typed declaration “in respect of the goods covered herein, no credit of the additional custom duty levied under Sub-section (5) of Section 3 of Custom Tariff Act, 1975 shall be admissible” has been found.
• Being aggrieved, appellant filed an appeal before the commissioner (Appeals). The Learned Commissioner (appeals) once again remanded the matter vide the impugned order to the Adjudicating Authority against that order, the appellant filed the present appeal.

Issue:

• Whether the refund is admissible when an assessee paid the SAD by debiting MEIS?
• Whether for not making the declaration of invoice as required in para 2(b) of Notification No. 102/2007-Cus the refund is admissible or not?

Order:

• The Tribunal observed that the issue whether the refund is admissible when an assessee paid the SAD by debiting MEIS has been settled in the judgment of ALLEN DIESELS INDIA PVT. LTD. VERSUS UNION OF INDIA & ORS. where it is clear that even if the assessee does not pay the SAD amount in cash but the same is debited in any incentive scrip, in the aforesaid case the same was debited from DEPB, the refund of SAD cannot be denied. It was held that the same analogy is applicable in the present case as the amount of SAD was debited in MEIS scrip. Therefore, the issue is clearly covered by the aforesaid judgment.
• As regard to the issue that whether for not making the declaration of invoice as required in para 2(b) of Notification No. 102/2007-Cus the refund is admissible or otherwise, it was held that the Larger Bench judgment of this Tribunal in the case of CHOWGULE & COMPANY PVT LTD VERSUS COMMISSIONER OF CUSTOMS & CENTRAL EXCISE has dealt with the same issue where it was held that even if no declaration is made for that reason the refund cannot be denied. 
• Therefore, it was held that the appellant is clearly entitled for the refund.