Sulekha Beevi C.S. ORDER
Sulekha Beevi C.S., Member (J)
1. Brief facts of the case are that appellant has filed refund applications seeking refund of 4% Additional Customs duty as per Notification No. 102/2007-Cus. : MANU/CUST/0175/2007 dated 14.9.2007. 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. : MANU/CUST/0175/2007 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 dt. 07.09.2017 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. Aggrieved by such order, the appellants are now before the Tribunal.
2.1. On behalf of the appellant. Ld. Counsel Shri Harish Bindumadhavan appeared and argued the matter. He submitted that the goods were imported between January and April 2015 by Doosan Infracore India Pvt. Ltd. and they filed in-bond Bill of Entry for storage of goods at the customs bonded warehouse. On 01.04.2015, a slump sale agreement was executed for sale of its Excavator Division by Doosan Infracore India Pvt. Ltd to the appellant herein, namely, Doosan Infracore Construction Equipment India Pvt. Ltd. On 13.4.2015, ex-bond bill of entry was filed by Doosan Infracore India Pvt. Ltd. for clearance of goods for home consumption by paying all applicable duty including 4% SAD on behalf of the appellant. For clearing such goods, IEC of Doosan Infracore India Pvt. Ltd. was used since the appellant M/s. Doosan Infracore Construction Equipment India Pvt. Ltd. was yet to obtain IEC. They later obtained IEC on 27.4.2015. After clearance of goods, the appellant herein filed refund claim of SAD as per the notification No. 102/2007-Cus. : MANU/CUST/0175/2007 dt. 14.9.2007. On 1.7.2016, the refund was granted. Later on 7.9.2017, the present SCN has been issued proposing to recover a portion of the sanctioned refund alleging that appellant is not the owner/importer of the goods and that therefore the condition stipulated in the notification has not been complied.
2.2. He adverted to the conditions of Notfn. 102/2007-cus. : MANU/CUST/0175/2007 dt. 14.09.2007. As per clause 2 (c) of the notification, the 'importer' has to file claim for refund of SAD. He adverted to Section 2(26) of the Customs Act, 1962 which defines the term "importer". Prior to 2017, the definition reads as under:
(26) "importer", in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner, or any person holding himself out to be the importer;
2.3. On plain reading of the above, it is clear that the definition of importer is an inclusive definition and that importer includes any person holding themselves out to be the importer after the physical importation of the goods but before the clearance for home consumption.
2.4. In the present case, only the physical import of the goods was made by Doosan Infracore India Pvt. Ltd. but the Appellant became the owner of goods before clearance of the impugned goods for home consumption by the event of slump sale. This is also evident from the following activities of the Appellant:
a. The ........