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Doosan Infracore Construction Equipment India Pvt. Ltd. Vs. The Commissioner of Customs (Preventive) - (Customs, Excise and Service Tax Appellate Tribunal) (05 Apr 2021)

Refund cannot be denied, when all conditions of the notification are fulfilled

MANU/CC/0031/2021

Customs

In present matter, Appellant has filed refund applications seeking refund of 4% Additional Customs duty as per Notification No. 102/2007-Cus. dated 14th September, 2007. The refund claims were processed and refund was sanctioned to the Appellant. Later, on verification, it was noticed by the Department that, with regard to 5 Bills of Entry, there is difference in the name of importer in the Bill of Entry and the corresponding sale invoices.

The Department was of the view that the Appellant is not eligible for refund as the conditions stipulated in Notification No. 102/2007-Cus. is not fulfilled; that only importer is eligible to claim refund of 4% SAD paid on imported goods and since claimant is not the importer of the goods, the refund ought not to have been sanctioned. Show cause notice was issued proposing to recover the erroneously sanctioned refund of Rs. 9,88,526 along with interest. After due process of law, the original authority confirmed the demand of 4% SAD amounting to Rs. 9,88,526 along with interest.

It is for the importer to file refund claim. The definition of "importer" as it stood prior to 2017 is an inclusive definition wherein the importer includes any owner or person holding himself out to be the importer. The appellant has entered into slump sale agreement with Doosan Infracore India Pvt. Ltd. on 1.4.2015 for sale of Excavator Division.

The definition of 'Acquired Assets' as per Section 1 of the said agreement is that, all assets and properties of the seller owned or used by the seller in connection with business would fall within "acquired assets" by the Appellant. It is also stated that, all tax benefits/receivables relating to inventory being transferred including but not limited to refund of SAD would be acquired assets from seller to buyer. After the slump sale agreement of the excavator division, the Appellant has become the owner of the imported goods or can be said to be in the shoes of a person holding himself out to be the importer. Though IEC of Doosan Infracore India Pvt. Ltd. was used for clearance of the goods, it cannot be said that, Appellant is a total stranger to Doosan Infracore India Pvt. Ltd. So also, it cannot be said that, the Appellant does not have any ownership over the goods.

The agreement is sufficient evidence to satisfy that the ownership of the goods was transferred from Doosan Infracore India Pvt. Ltd. to the Appellant. This being the circumstances, the refund claim filed by the Appellant would satisfy the condition prescribed in clause 2(c) of the Notification No. 102/2007. Sanction of refund to the appellant is legal and proper. The impugned order cannot sustain.

In the present case, there is no misuse or abuse of IEC code and the appellant being the owner of the goods has used IEC code of Doosan Infracore India Pvt. Ltd. for clearing the goods. If at all, it may be a procedural infraction. The refund cannot be denied, when all conditions of the notification are fulfilled. There is no violation of condition of Notification No. 102/2007 :so as to deny the refund of SAD as the appellant would fit into the definition of "importer". The impugned order is set aside. Appeal is allowed.

Tags : REFUND   RECOVERY   VALIDITY  

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