TMI Blog2013 (3) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... ants. Accordingly, the appellants are entitled for refund claim - in favour of assessee. - C/192-195/2011 - A/1577-1580/2012-WZB/AHD - Dated:- 5-10-2012 - Shri M.V. Ravindran, J. Shri Anand Nainawati, Advocate, for the Appellant. Shri K.N. Joshi, AR, for the Respondent. [Order]. - These appeals are directed against the following orders in appeal No. 59/2011/Cus/Commr(A)/Ahd, dated 11-2-2011. 2. Since all these appeals are of the same assessee and raise a common issue, they are being disposed of by a common order. 3. The relevant facts that arise for consideration in brief which yields the present appeals is that the appellant is the manufacturer of various Electronic goods in their factory at Thane and are also importing Air-conditioners, washing machines DVD Players, Micro ovens etc. which are cleared on payment of import duties including Special Additional Duty at the rate of 4% liable under Section 3(5) of Customs Tariff Act, 1975, on due assessment of Bills of Entry. The appellant had filed refund claim of Rs. 12,41,910/- in respect of Special Additional Duty of Customs (4% SAD) paid by them at the time of import of different models of Air-conditioners, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction. He would draw my attention to C.B.E. C. Circular No. 16/2008-Cus., dated 13-10-2008 and submit that the Board in its own wisdom has specifically stated that in cases of refund of 4% of special CVD, certificate issued by the chartered accountant is enough. He would also submit that the said circular was further modified by the circular dated 8-7-2010 and reads paragraph 6 of the said circular. It is his submission that the appellant had given a certificate issued by their chartered accountant M/s. M.M. Raji Co. who are also their statutory auditors and draws my attention to the said certificate. It is his submission that both the lower authorities have gone beyond the Board s instruction and called for the balance sheet and rejected the refund claims only on the basis that the appellant had shown the amount of 4% special CVD as expenses in the P L account. It is his submission that they had explained the reasoning for showing the same in detail in reply to their show cause notice and had also provided the chartered accountants certificate. It is his submission that the judgment of the Tribunal in the case of STP Ltd. v. CCE (Import), Mumbai as reported at 2011 (267) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the effect that the burden of 4% CVD has not been passed on by the importer to the buyer. The provisions contained in the various Sales Tax Laws prevailing in various States provide for Audit of the books and accounts for the purpose of ascertaining the correctness of ST/VAT payment/Input Tax Credit. Further, Section 44AB of the Income Tax Act, 1961 provides that certain persons carrying on business or profession exceeding the prescribed limit are required to get their accounts audited by an Accountant explained therein. Considering these provisions, it is clarified by the Board that the statutory auditor/Chartered Accountant mentioned in para 6 of the earlier Board s circular refers to Chartered Accountant within the meaning of Section 2(1)(b) of the Chartered Accountants Act, 1949. However, it is clarified that the Customs field formations shall accept the certificate given only by such a Chartered Accountant who either certifies the importer s financial records under the Companies Act, 1956 or any ST/VAT Act of the State Government or the Income Tax Act, 1961, in order to fulfil the condition that the incidence of duty burden has not been passed on by the importer to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd same amount has not been passed on to the buyers of the sale of goods. - For N.M. RAIJI CO. Chartered Accountants J.M. Gandhi Partner Membership No. 37924 Place : Mumbai Date : December 20, 2008 13. It can be seen from the above reproduced certificate of the chartered accountant, that they have clearly and unequivocally stated that they are the chartered accountants who certified the annual financial accounts under the Companies Act of the appellant herein. Such a chartered accountant s certificate has been sought to be dismissed by the lower authorities by calling for the balance sheet of the assessee and after scrutinising the balance sheet, to hold against the appellant only on the ground that the 4% CVD has been charged to P L account as an expense. I find that the C.B.E. C. on the doubts which have been raised, vide their Circular dated 8-7-2010 clarified as under : 6. Some field formations have also raised certain doubts whether the audited Balance Sheet and Profit and Loss Account have to be examined in respect of the current financial year for scrutiny of unjust enrichment aspect. It is stated that a large number of refund claims relating to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that as per Circular No. 18/2010, dated 8-7-2010 the appellants required to produce the Chartered Accountant certificate to discharge their liability of bar of unjust enrichment which they have filed before the adjudicating authority while claiming the refund. As per the above said circular which is binding on the departmental official the appellants are entitled for refund claim. On the other hand, ld. DR reiterates that the lower authorities have categorically analysed the issue in detail and found that the appellants have failed to discharge the bar of unjust enrichment. Heard and considered. 3. I have examined the submission made by both sides. The only issue is that the bar of unjust enrichment is applicable to the facts of this case when the appellants have filed a refund claim of SAD paid by them at the time of import of goods which were cleared by them on payment of VAT. As the appellants have obtained a certificate from Chartered Accountant confirming that the duty liability of SAD has not been passed on to the buyers by the appellants, the same is sufficient as per the Board s Circular No. 18/2010-Cus., dated 8-7-2010, to discharge the liability of bar of unjust enri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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