GLASSTECH INDIA Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE brief facts of the case are that the respondent filed a refund claim for Rs. 4,89,057/ - on 24 -8 -2012 under Notification No. , dated 14 -9 -2007 in respect of Special Additional duty of Customs (in short "SAD") paid under sub -section (5) of Section 3 of the Customs Tariff Act, 1975 on the import of goods against BE Nos. 6679297, dated 28 -4 -2012, 6679459, dated 28 -4 -2012, 6860781, dated 18 -5 -2012, 6862927, dated 18 -5 -2012 and 6860925, dated 18 -5 -2012 which were subsequently sold against payment of VAT. The refund sanctioning authority vide its impugned order dated 10 -9 -2012 sanctioned the said refund claim of Rs. 4,89,057/ - to the respondent under Section 27 of the Customs Act, 1962. Being aggrieved with the said impugned order, the appellant department has filed the present appeal claiming that the impugned order passed by the refund sanctioning authority is not proper and legal to the extent that an amount of Rs. 96,324/ - has been refunded erroneously on the ground that the goods imported against the BE No. 6679459, dated 28 -4 -2012 have been shown to have been sold by the respondent on 19 -5 -2012 against Invoice No. 19, dated 19 -5 -2012 i.e. prior to the date of out of charge given by the Superintendent (Customs), ICD, Loni in case BE No. 6679459, dated 28 -4 -2012 which is 22 -5 -2012. As such the goods sold on Invoice No. 19, dated 19 -5 -2012 are not the same as imported by the respondent against the said BE.

(2.) THE appellant submitted before Commissioner (Appeals) that the duty on goods against BE No. 6679459, dated 28 -4 -2012 was paid vide TR. 6 challan dated 19 -5 -2012 and presuming that the goods would get out of charge by 19 -5 -2012, the sale invoice was made in the name of buyer on 19 -5 -2012. The respondent further contended that the goods had to be transferred to the buyer directly from the port of import and in order to make the billing and payment easier, the invoice was made for 19 -5 -2012. The Commissioner (Appeals) accepted the Revenues appeal on the ground that the importer has issued invoice on 19 -5 -2012 which cannot be held to be for the same good which were given out of charge by the Superintendent on 22 -5 -2012. As such, the importer has failed to establish the sale of the said imported goods on payment of appropriate sales tax or value added tax and thus correlation between the goods sold and imported. Accordingly, he allowed the Revenue's appeal.