SERVICE TAX

2019-TIOL-519-SC-ST

CCE & CC Neha Constructions Pvt Ltd

ST - Assessee respondent was providing services such as collection, segregation, cleaning, magnetic separation, cutting, loading, transportation, dozing, cooling, stocking, screening etc. - Original authority viz. Commissioner of Central Excise held that the activities do not fall in the category of Business Support Service and CESTAT upheld this order consequently rejecting Revenue appeal - Department in appeal before Supreme Court.

Held: After condoning the delay, appeal is admitted: Supreme Court

- Appeal admitted: SUPREME COURT OF INDIA

2019-TIOL-3472-CESTAT-BANG

Agility Logistics Pvt Ltd Vs CC, CE & ST

ST - Appellant is engaged in providing services in the nature of clearing and forwarding, business auxiliary and logistics management pertaining to import and export of cargo - As a part of 'Logistics Management Service', the appellant provides services to its customers desiring to import or export its goods - The customer enquires with the appellant for the services along with freight charges that will be charged by the appellant to provide the cargo handling services to the customer - The appellant, thereafter, scouts for a shipping line which will offer a competitive rate and thereafter, the appellant chooses the shipping line that offers most competitive rate on the given date for the given cargo - Revenue entertained the view that the services rendered by the appellant is 'Steamer Agent Services' and in respect of the commissions received from airline for placing cargo, the services are 'Business Auxiliary Services' – SCN issued and demand confirmed by lower authorities – appeal to CESTAT.

Held: In order to attract Service Tax as steamer agent, one needs to perform services in connection with ship's husbandry or dispatch including rendering of administrative work related thereto or book, advertise or canvas for cargo on behalf of shipping line or to provide container feeder service for and on behalf of shipping line – Bench finds that Revenue has failed to bring any evidence on record while issuing the SCN and while passing the impugned order which justifies the categorization of appellant in the definition of 'Steamer Agent' - impugned order is also contradictory because Commissioner (A) in the impugned order has, in fact, admitted that the appellant has not provided any 'Steamer Agent Service' but still confirms the demand on the ground that the appellants are carrying out ancillary activity, that of a steamer agent – demand under the head ‘Steamer Agent service' is set aside - As far as 'Business Auxiliary Service' is concerned, appellant states that they have paid the Service Tax along with interest – Insofar as penalty is concerned, there was confusion about the taxability of commission received from airline during the relevant time and, therefore, there cannot be any mala fide intention - penalty imposed is set aside: CESTAT [para 6.1, 7]

- Appeal partly allowed: BANGALORE CESTAT

2019-TIOL-3457-CESTAT-HYD

B Srinivasa Rao Vs CCE, C & ST

ST - The assessee is a contractor rendering various services to Central Power Distribution Company A.P. Limited which are taxable services as per FA, 1994 - Revenue was of the view that the assessee had underpaid taxes and accordingly a SCN was issued demanding differential service tax being the service tax on the amounts received towards different services, under section 73(1) of FA, 1994 - Penalties under section 76, & 77 were also proposed to be imposed - It is seen that of the total service tax of Rs. 2,50,780/-, assessee have in fact paid an amount of Rs. 1,03,672/- - They have filed a stay petition seeking waiver of recovery of the remaining amount - Considering that the assessee has deposited almost 40% of the service tax demanded which is reasonable, the recovery of the remaining amount of service tax demand is stayed and the matter is remanded to the first appellate authority to consider the matter on merits and pass a reasoned order, after following the principles of natural justice - Consequently, the application for condonation of delay is allowed - The application for stay of recovery of unpaid amount of service tax, interest and penalties is allowed: CESTAT

- Matter remanded: HYDERABAD CESTAT

2019-TIOL-3456-CESTAT-AHM

Ashani Corporation Vs CST

ST - The issue involved is that whether the assessee is liable to pay service Tax on consideration received from Gallilieo & Amadus for using their platform for booking air ticket and whether the demand is time barred - There is no dispute on the fact that there was confusion about classification and taxability of service of CRS system used by assessee, therefore, on the identical issue, this Tribunal has held that the demand pertaining to the extended period is not sustainable in the case of Ram Krishna Travels Pvt Ltd - In view of said judgement, the demand for extended period is not sustainable: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

 

 

 

 

 

CENTRAL EXCISE

2019-TIOL-518-SC-CX

Maja Personal Care Vs CCE

CX - High Court while dismissing the appeal held that whether a party fairly disclosed the facts or suppressed or gave selective information, the same are questions of fact and do not give to substantial questions of law - appeal to Supreme Court.

Held: Bench is not inclined to interfere with the impugned order, therefore, Special Leave petition is dismissed: Supreme Court

- Petition dismissed: SUPREME COURT OF INDIA

2019-TIOL-3455-CESTAT-DEL

Bhagwati Power And Steel Pvt Ltd Vs CC, CE & ST

CX - The assessee is engaged in manufacturer of sponge iron - Their names were found mentioned in incriminating records of M/s. Kailash Traders, an agent engaged in business of facilitating sale and purchase of iron and steel products on commission basis, as were recovered by Department during the search of said agent's premises - Search was conducted in the premises of assessee and SCN was served proposing the demand of Central Excise duty in respect of sponge iron alleging the same to have been cleared clandestinely - The interest at the appropriate rate and the proportionate penalties were also proposed to be imposed upon assessee - The Tribunal vide final order dated 09.03.2017 remanded the matter back for de-novo adjudication, observing the order to be suffering from various inconsistency, with the direction to re-adjudicate following the ratio laid down in case of Continental Cement Co. - 2014-TIOL-1527-HC-ALL-CX - In furtherance of said direction, the impugned order under challenge was passed vide which the demand of Central Excise duty amounting to Rs.1,24,71,399/- has been dropped - However, the duty of Rs.4,16,234/- alongwith the interest and the penalty to the equal amount also one under rule 26 on Central Excise Rules has been confirmed - Resultantly, the narrow scope of appeals is about the demand of Rs.4,16,234, as has been confirmed in respect of the shortage noticed in the stock of assessee - No doubt, the statement of Mr. Kejriwal has recorded inability on his part to give the details about the noticed shortage - However, the fact still remains is that based upon the noticed shortage department has alleged the clandestine removal and that it has already been observed by adjudicating authority below that Department is not able to prove the allegations - It was clarified that there has to be some evidence in the form of sale of raw-material clandestine manufacture, flaw back of funds, purchases by buyers or any other evidence proving clandestine manufacture and removal - Mere shortage in the stock as noticed, that too, on the basis of eye estimation only, the same cannot be held to be convincing corroborative evidence even qua the alleged shortage - In another decision of Tribunal, Delhi Bench in case of M/s. Rajrattan Industries Ltd., it has been held that when the entire case of Revenue is based only on the shortages detected at the time of visit of officers as also the statement of the Director - However, in the absence of concrete evidence leading towards the clandestine activities, the said charges cannot be upheld against the assessee - The weighment slips and inventories could have been the most relevant documents - The absence thereof is sufficient to falsify the shortages, if any, detected by the officers - Such shortage cannot be held to be genuine - Observing that except the statement of assessee's Director, there is no other evidence produced by Department to corroborate the noticed shortage - The confirmation thereof vide the Order under challenge is held to be inappropriate: CESTAT

- Appeals allowed: DELHI CESTAT

2019-TIOL-3454-CESTAT-ALL

Aryan Exporters Pvt Ltd Vs CCGST & CE

CX - The assessee-company is registered with the Central Excise Department - Between 1988-91, the assessee manufactured goods such as Rubber buffer spring Freight Stock, Rubber recoil spring, Rubber draft gear pads, Elastomeric pads, Side bearer pads and Meter gauge pads - Dispute arose over classification of such goods, which was finally settled by the Tribunal holding that they were classifiable under Chapter 40 sub heading 4016.19 of Schedule to CETA 1985 - The Revenue meanwhile favored classification of the goods under sub-heading 8607 - Upto May 2016, the duty under both headings remained the same - Meanwhile, the assessee manufactured 26 other items - These 26 items were also classified under sub-heading 4016 and duty was paid accordingly - All goods manufactured were as per specifications provided by the Railways and were supplied to either the Railways or to its vendors for ultimate consumption by the railways - Later, the Notfn No 12/2016-CE was introduced wherein the rate of Excise duty on parts of Railway falling under Chapter Heading No 8607 was reduced to 6% ad valorem whilst the duty rate on goods under Chapter Heading 4016 remained at 12.5% ad valorem - The assessee continued to classify the goods under heading 4016 and paid duty accordingly - For the period between March 2016 to May 2016, the Railways refused to reimburse duty @ 12.5% and reimbursed duty @ 6% applicable to goods falling under Chapter 8607 - From May 2016 onwards, the assessee began classifying the goods under heading 8607 and paid duty @ 6% ad valorem - For period between March - April 2016, the assessee claimed refund of differential duty between 6% and 12.5% and the same was sanctioned by the Commr.(A) - For period between May 2016 to June 2017, the Revenue issued SCN raising demand for differential amount of duty being that between 12.5% adv and 6% adv - The adjudicating authority held that the Tribunal had already finalized classification under Heading 4016 and hence proceeded to sustain the duty demand with interest and imposed penalty - Hence the present appeal.

Held - The original authority held classification of all 28 items manufactured by the assessee to be under Chapter Heading 4016 on the strength of the Tribunal's order - During the relevant period for which such order was passed, only 6 types of goods were manufactured by the assessee - During the relevant period of the present demand, only 2 of these 6 items, namely Rubber Buffer Spring for Freight Stock and Side Buffer Recoils Spring, were manufactured by the assessee - As the issue attained finality, the two items are to be assessed as per the rate prevailent in the relevant time and so merit being classified under Heading 4016 - The remaining 26 types of items not manufactured till 1992 cannot be considered to be those on which the Tribunal passed the order - Such such 26 types of goods were not subject matter of dispute, their classification can be ascertained - All of these 26 types of goods are supplied to the Railways and so the description under Heading 8607 is more appropriate compared to description under Heading 4016 - As per Rule 3(a) and 3(c) of the Rules of Interpretation, the classification under heading 8607 is appropriate - Therefore, the differential duty demanded in respect of these 26 types of goods is not sustainable - Hence the duty demand with interest and penalty in respect of these 26 types of goods merits being set aside - The Revenue is free to calculate the differential duty for the period from May 2016 to June 2017 in respect of Rubber Buffer Spring For Freight Stock and Side Buffer Recoils Spring along with interest: CESTAT

- Assessee's appeal partly allowed: ALLAHABAD CESTAT

 

 

 

 

CUSTOMS

2019-TIOL-2749-HC-DEL-CUS

Ramanpreet Kaur Vs UoI

COFEPOSA - CUS - Present petition has been filed by the sister of the detenue seeking release of her detained brother - Petitioner states that the alleged recoveries of 'drones' in the present case had been falsely attributed to the detenue inasmuch as the officer concerned had illegally clubbed all the recoveries made from four different passengers and attributed the same to the detenue; that notification F.No.671/14/2012 Cus. VIII dated 3rd August, 2012 passed by Ministry of Finance, Department of Revenue states that COFEPOSA cannot be invoked until the attempted duty evasion is Rs. 50 lakhs or the value of the goods is Rs. 2 crores; that the value of the recovered goods in the present case had been exaggerated and the market value of the same was much less than Rs. 50 lakhs; that even if the value attributed by the respondents is to be believed at Rs.1.09 crores, the same falls short of the prescribed amount in the aforementioned Notification; that since the passports of the detenue and his family members were already in the possession of Custom Department, there was no possibility of the detenue committing an offence of smuggling; that the impugned detention order should not have been passed as the detenue was already in custody and there was no likelihood of him being released inasmuch as three of his bail applications had already been dismissed.

Held: Court is of the view that the ownership of the recovered goods had been attributed to the detenue on the basis of the voluntary statements made by other accused persons namely Mr. Harmeet Singh (brother of the detenue), Mr. Sumit Varma, Mr. Sourabh Chopra, Mr. Amarjeet Singh and co-accused/partner of the detenue - Mr. Gurpreet Singh - Perusal of the voluntary statements made by them under Section 108 of the Customs Act shows that they had been carrying the recovered goods on the instructions of the detenue and he was in fact, the real owner of all the goods recovered - Consequently, the contention of the petitioner that the Custom officers had illegally clubbed all the recoveries to exaggerate the value of the goods is contrary to facts: High Court [para 14]

COFEPOSA - Court is in agreement with the submission of the Respondent Nos. 1 and 2 that since the detenue had been repeatedly indulging in acts of smuggling, as mentioned in the counter-affidavit filed on behalf of the Respondent Nos. 1 and 2, the notification F.No.671/14/2012 Cus. VIII dated 3rd August, 2012 passed by Ministry of Finance, Department of Revenue did not prohibit/restrain the respondents from detaining the detenue - Court is of the opinion that the present case squarely falls under clause 'a' of the exceptions provided under the notification as the detenue was a 'kingpin' and a 'repeat offender' and according to the material placed on record, it was the fifth offence of smuggling in which the detenue had been found involved - fact that the detenue was a kingpin and a repeat offender and had indulged in smuggling activities prior to the impugned detention order being passed against him proves that he had the propensity and potentiality to continue with such acts and/or finance other persons to commit such acts in future - There is nothing on record to suggest that the Custom Department had seized the passport of the detenue - passport of the detenue along with other articles was kept in 'jamatalashi' upon his arrest on 3rd February, 2019 and the same was available for release upon following the due procedure - The fact that the detenue had not sought for the release of his passport cannot be misconstrued as a seizure by the Custom Department - there is evidence to show that the detenue need not travel outside India to commit an offence of smuggling as he was a kingpin who had multiple associates who had been smuggling goods into India at his behest - Keeping in view his past conduct, there seems to be every likelihood of him indulging in the activities of smuggling - Consequently, the likelihood of the detenue indulging in smuggling activities was not effectively foreclosed by deposit of his passport - Court also finds that the bail applications preferred by the detenue were a part of the relied upon documents of the detention order and in the grounds of detention, the Detaining Authority had noted that even though the detenue was in judicial custody, yet there was an immediate possibility of him being released on bail and continuing with illegal acts of smuggling - The same proves that the detaining authority had justifiable reasons to pass the impugned detention order to prevent the detenue from indulging in illegal acts - 'satisfaction' of the detaining authority is 'subjective' in nature and the Court cannot interfere with the order of detention by substituting its opinion for the subjective satisfaction of the detaining authority - Since there is no cogent reason to interfere with the satisfaction of the detaining authority, the impugned detention order dated 11th March, 2019 and the impugned order dated 7th June, 2019, confirming the said detention order, are upheld - Petition dismissed: High Court [para 15, 16, 17, 18, 19, 23, 24, 26, 27]

- Petition dismissed: DELHI HIGH COURT

2019-TIOL-2742-HC-DEL-CUS

Khandwala Enterprise Pvt Ltd Vs UoI

Cus - SCN dated 12th July, 2019, stands issued, to the petitioner, in respect of the gold coins imported by it - SCN requires the petitioner to show cause as to why the gold coins imported by the petitioner be not confiscated under Section 111 (d) of the Customs Act, 1962 for having been imported in violation of Section 3 (3) of the Foreign Trade (Development and Regulation) Act, 1992 and para 2.08 of the Foreign Trade Policy, 2015-2020; the benefit of Notification 152/2009-Cus be not denied to it ; Customs duty, already deposited by the petitioner against the aforesaid imports of gold coins, be not adjusted against the duty which would be payable consequent on denial of the claim for exemption under Notification 152/2009-Cus and differential duty be not confirmed and demanded, penalty be not imposed on the petitioner under Section 112 (a) of the Act, and the assessment of one of the aforesaid eight B/E, which was provisional, be not finalized on the above lines - According to the Revenue, the gold coins imported by the petitioner under the aforesaid eight B/E were appropriately classifiable, not under Sub-Heading 7114 1910, but under Sub-Heading 7118 9000 of the Tariff - On the basis of the aforesaid, the Show Cause Notice alleges that Sub-Heading 7118 1000 covers coins other than gold coins, which are no longer legal tender, and Sub-Heading 7118 9000 covers all other coins, including legal tender and gold coins - It is, therefore, alleged that the gold coins imported by the petitioner were appropriately classifiable under Sub-Heading 7118 9000, rather than Sub-Heading 7114 1910, of the Tariff; that under the ITC (HS), therefore, "coins (other than gold coins not being legal tender)" fall under Heading 7118 1000, and are freely importable, whereas import of other coins (which would include gold coins), which fall under Heading 7118 9000, though also free, is subject to regulations framed by the Reserve Bank of India (RBI) - The RBI, on being queried in this regard, especially with respect to the gold coins imported by the petitioner - vide letters dated 8th August, 2017 and 24th August, 2017, issued by the Customs authorities - clarified, vide its letter, dated 13th September, 2017, that the gold coins imported by the petitioner (or by Mink) were not freely importable inasmuch as they were not agencies falling within any of the aforesaid three categories, who alone were entitled to import gold coins - On the basis of the above, the impugned Show Cause Notices allege that the gold coins imported by the petitioner and Mink, having been imported in violation of the FTP, were not entitled to the benefit of exemption under S. No. 526 of Notification. 152/2009-Cus supra - petitioner submits that it was grossly improper, as well as ex facie illegal, on the part of the Director (Customs), to observe, in the Circular 450/67/2019-Cus.IV dated 31st May, 2019, that the judgments of the Customs, Excise and Service Tax Appellate Tribunal in the Final Orders dated 12th August, 2018 and 27th November, 2018, both of which were passed in appeals filed by M/s Sri Exports, were not legal and proper - The petitioner submits that, while the right and entitlement, of the Customs authorities, to appeal against the said final orders passed by the Tribunal, could not be gainsaid, the CBIC had no authority, whatsoever, to castigate the said final orders - which were binding on all customs formations - as not being legal and proper; that, even on first principles, the CBIC had no jurisdiction, whatsoever, to place any fetter or control over adjudicatory proceedings, relating to imported goods.

Held: Concluding paragraph of the impugned Circular, dated 31st May, 2019, issued by the CBIC is, even on a first reading, plainly objectionable - It discloses a woeful lack of appreciation, by the author of the said Circular, of the most rudimentary principles of law and precedent - Decisions of the Tribunal are, in the absence of any rulings to the contrary, by authorities higher in the judicial echelons, binding on all field formations, as well as adjudicating authorities - Any act or decision, by an officer, lower in judicial hierarchy to the Tribunal, which would include all officers of the Department of Revenue and, in any case, every Customs or Central Excise Officer in the Government, which is contrary to the law laid down by the Tribunal, is not only ex facie unsustainable, but is also contemptuous of the Tribunal - It was, therefore, completely impermissible for the CBIC to, in the impugned Circular dated 31st March, 2019, direct field formations to deal with consignments pending clearance at airports in accordance with the view of the CBIC, rather than the orders of the Tribunal merely because the CBIC felt that the said orders were not "legal and proper" - This direction flies in the face of two of the most fundamental principles governing adjudication, viz., firstly, that it is not open to any executive, or administrative, authority to control, in any manner, the adjudicatory process, and, secondly, that no adjudicating authority can be directed to act in conscious violation of the law - These principles are, indeed, so elementary, that we are astonished at the directions contained in the impugned circular dated 31st May, 2019 - The authority issuing the said circular ought to have been aware of the fact that "dealing with" consignments pending clearance at ports and airports involves a process of adjudication, and that it was not open to any such authority, dealing with such consignments, to act in violation of binding decisions of the Tribunal - The concluding paragraph of the impugned Circular dated 31st May, 2019, issued by the CBIC flies directly in the face of the law, as laid down by the Supreme Court in Kamlakshi Finance Corporation Ltd - 2002-TIOL-484-SC-CX-LB - In directing field formations to deal with consignments pending clearance at ports and airports, in accordance with the views expressed by it, in preference to the law laid down by the Tribunal, it is clear that the CBIC has acted in direct and conscious violation of the proviso to Section 151A of the Customs Act - diktat, as contained in the concluding paragraph of the impugned Circular dated 31st May, 2019 is illegal - Circular, dated 31st May, 2019, having been found to be in contravention of the law, the invocation of the said Circular, in para 8 of the Show Cause Notices dated 12th July, 2019 and 28th June, 2019, too, therefore, cannot be legally sustained: High Court [para 27, 28, 29, 31, 32, 33]

Cus - Circular No. 450/67/2019-Cus. IV and Corrigenda to impugned Show Cause Notices - respondent, in an apparent bid to salvage the situation, issued Circular dated 9th September, 2019, as well as corresponding Corrigenda dated 30th September, 2019 and 7th October, 2019, replacing para 8 in the impugned Show Cause Notices dated 12th July, 2019 (issued to the petitioner) and 28th June, 2019 (issued to Mink) - Circular dated 31st May, 2019, was somewhat more brazen, in directing adjudication of pending consignments, at ports and airports, to be undertaken in accordance with the views of the CBIC, rather than the views of the Tribunal. By comparison, para 4 of the Circular dated 9th September, 2019, which "modifies" the directions contained in the Circular dated 31st May, 2019, does not expressly direct field formations to act contrary to the view expressed by the Tribunal, but, rather, directs them to "take suitable action in accordance with the above instructions of RBI/relevant master circulars/extant FTP provisions and the clarification from DGFT dated 21.6.19 cited above besides provisions of the Customs Act with regard to pending or future imports of gold consignments" - In our view, however, the distinction between the concluding paragraph of the Circular dated 31st May, 2019, and paragraph 4 of the Circular dated 9th September, 2019, is merely superficial - The CBIC has, effectively, reiterated its direction, to all authorities assessing pending imports, to ignore the judgments of the Tribunal - this is completely impermissible - Administrative and executive authorities, in the Indirect Tax hierarchy, are completely proscribed from directing field formations to act in violation of judicial orders - The order, if any, of the superior judicial authority, "suspending" the order passed by the Hyderabad bench of the Tribunal, is also not disclosed - Such vagueness, in a Circular issued by the CBIC, which has pan-India ramifications, is completely intolerable - Filing of an appeal against an order of a judicial authority, it is fundamental, does not even dilute, far less erode, the precedential value of the judgment appealed against - Suffice it to state that there is no absolute proposition, in law, that an order, of a lower judicial authority, completely loses, on its being stayed by a higher judicial authority, its entire precedential value - para 8 of Show Cause Notice dated 12th July, 2019/15th July, 2019, issued to the petitioner, and para 8 of the Show Cause Notice dated 28th June, 2019/19th July, 2019, issued to Mink, would also be required to be set aside: High Court [para 34, 37, 38, 40]

Cus - It is only where a show cause notice has been issued by an authority which is incompetent to do so, that, ordinarily, a court would interfere therewith - In the present case, the petitioner does not even remotely suggest that the Commissioner was not competent to issue the impugned Show Cause Notices - Article 226 of the Constitution of India is no akshaya patra, in which every sort of grievance can find absolution, even where adequate and efficacious alternative remedies are available: High Court [para 43, 44]

Cus - Office Memorandum, dated 6th September, 2017, issued by the DGFT - it is required to be clarified that the impugned Office Memorandum, dated 6th September, 2017, issued by the DGFT, and 16th February, 2018, issued by the CBEC, cannot fetter, or bind, the adjudicating authorities, adjudicating the impugned Show Cause Notices, issued to the petitioner and to Mink, in any manner - In other words, while the position, in law, enunciated in the said Office Memoranda, is correct, the extent to which the said position in law affects the cases of the petitioner, and of Mink, would have to be assessed, on their own merits, by the competent adjudicating authorities: High Court [para 53]

Cus - Office Memorandum dated 16th February, 2018, issued by the CBEC - When the issue of classification, and entitlement to exemption, of the gold coins, imported by the petitioner, and other similarly situated importers, is at large before competent adjudicating authorities, who are in session thereof, the CBEC was completely unjustified in issuing the Office Memorandum dated 16th February, 2018 - The powers of the CBEC, as conferred by Section 151A of the Customs Act, cannot extend to issuance of executive instructions, or Office Memoranda, pronouncing on the merits of issues which are pending before adjudicating authorities - Such an attempt would result in reducing the adjudicatory process to a mockery, and deserves to be deprecated - Being, as it is, in the nature of executive trespass on the quasi-judicial terrain, the Office Memorandum dated 16th February, 2018, must necessarily perish - Writ petitions are disposed of: High Court [para 55, 56, 60]

- Petitions disposed of: DELHI HIGH COURT

2019-TIOL-3453-CESTAT-ALL

CC Vs Klaxon Trading Pvt Ltd

Cus - The assessee imported the goods vide various bills of entry on payment of Customs duty as also additional duty of Customs under Sub-section (5) of Section 3 of CTA, 1975 - In terms of Notfn 102/2007-CUS, the assessee is entitled to refunds of additional duty of Customs paid by them in case the goods are further sold on payment of VAT - Accordingly, the assessee filed an application for refund of SAD in terms of said Notfn - Same was taken up for adjudication by Original Adjudicating Authority, who, after verifying all the documentary evidences sanctioned the refund claim - Being aggrieved, Revenue filed the appeal before Commissioner (A) on the ground that the unjust enrichment angle had not been verified by Assistant Commissioner, who had only relied upon the Chartered Accountant certificate - The Commissioner (A) considered the said ground of appeal and observed that the assessee is entitled to refund of additional duty of customs in terms of provisions of Notfn 102/2007-CUS - Not being satisfied with the said order of Commissioner (A), Revenue has further filed the present appeal on the same very ground - Revenue has relied upon the Supreme Court decision in case of Addison & Company Ltd. - 2016-TIOL-146-SC-CX-LB which was also relied upon before Commissioner (A), who has observed that the same is not applicable to the facts of the present case - The refund of SAD in terms of Notfn 102/2007-CUS is special case of refund available to assessee in terms of Notfn itself - The same provides for refund of SAD in case of subsequent sale of imported goods on payment of VAT - As regards unjust enrichment, Board itself has clarified the issue that Chartered Accountant certificate indicating non passing of duty to the customers is sufficient - Revenue is silent on the applicability of various Tribunal decisions to the facts of the present case, which stands referred to and relied upon by Commissioner (A) - Neither have they said anything above Board Circular - It is well settled that Revenue cannot argue against the Board’s Circular which are in favour of the assessee - No reasons found to take a different view than the other taken by Original Adjudicating Authority and as also Appellate Authority: CESTAT

- Appeal rejected: ALLAHABAD CESTAT