TMI Blog2013 (8) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... ed – decided against revenue. - Appeal No: C/1530/2010 - Final Order No. 25480/2013 - Dated:- 19-6-2013 - SHRI B.S.V. MURTHY AND DR. D.M. MISRA, JJ. For the Appellant: Mr. R. K. Singla, Commissioner (AR) For the Respondent: Mr. K.S. Ravi Shankar/Mr. N. Anand, Advocate Order Per: B.S.V. Murthy M/s. Apple India Pvt. Ltd., filed refund in terms of Notification No.102/2007-Cus. dated 14.9.2007 (as amended by Notification No.193/2008-Cus. dated 1.8.2008) for an amount totaling to Rs.5,22,27,424/being the 4% of Special Additional Duty (ADC/SAD), paid while importing the goods. The adjudicating authority viz., the Deputy Commissioner, Customs, ACC, Bangalore, after verifying the correctness of the claim in terms of Notification No.102/2007-Cus. dated 14.9.2007 (as amended by Notification No.193/2008Cus. Dated 1.8.2008) read with Board s Circular No.6/2008 dated 28.4.2008 and 16/2008 dated 13.10.2008 and after due process of adjudication rejected the refund claim on the grounds that the importer/claimant failed to prove that they had not passed on the incidence of duty to the customers or any other person and also they have not furnished the required documents in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for subsequent sale when VAT/Sales Tax is paid by the importer. This exemption is operated in the manner specified in the Notification. The notification requires an importer to discharge the duty liability first, after selling the goods and discharging the liability of VAT/Sales Tax, he is required to file a refund claim with the customs. The Notification requires the following to be done by the importer. a) the importer of the said goods shall pay all duties, including the said additional duty of customs leviable thereon, as applicable, at the time of importation of the goods; b) the importer, while issuing the invoice for sale of the said goods, shall specifically indicate in the invoice that in respect of the goods covered therein, no credit of the additional duty of customs levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible; c) the importer shall file a claim for refund of the said additional duty of customs paid on the imported goods with the jurisdictional customs officer; d) the importer shall pay on sale of the said goods, appropriate sales tax or value added tax, as the case may be; e) the importer shall, inter alia, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enrichment is not attracted. 9. After considering these submissions, we consider one of the CA certificate produced by the appellants. The relevant portion of the certificate is reproduced as under: Auditors Certificate required to claim refund of Special Additional Duty (SAD) Certificate from the Statutory Auditor/Chartered Accountants, correlating the payment of ST/VAT on the imported goods (in respect of which refunds is claimed) with the invoices of sale, as is required along with the original tax/duty payment documents as proof of payment of appropriate ST/VAT for the purpose of Para 2(d) (e) of the Notification No.102/2007 dated September 14, 2007 and to demonstrate that the principle of unjust enrichment is not applicable to the refund being filed by the company. With regard to the imports under Bill of Entries and TR-6 Challans Number mentioned in Annexure 1 to the refund application wherein the Additional Duty of Customs (hereinafter referred to as ACD or duty) levied under sub-section 5 of Section 3 of the Customs Tariff Act, 1975 has been paid and the refund under Notification No.102/2007 dated September 14, 2007 as amended, is sought by M/s. Apple India Priv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods imported is decided considering the competitive market conditions and not on any cost-based formula and that the ACD has not been inbuilt in the sale price. This certificate is being issued after complete verification of all the requisite records and documents at the request of the importer. Date: March 23, 2009 For S. Krishnaswamy Co., Chartered Accountants sd/- Ravindra. T Partner M. No.206864 10. From the above, it can be seen that the auditors are the regular auditors; they have applied appropriate audit test; they have certified that the burden has not been passed on either directly or indirectly; they have taken into account how the price of traded goods have been arrived at for this purpose. On the other hand, we find that while the appeal memorandum says worksheet clearly shows that the appellants have passed on the ACD and CAs certificate has not categorically explained how ACD has not been passed on, there are no specific observations as to why the worksheet or the CAs certificate cannot be accepted and what are the defects in the certificate/worksheet. On the other hand, we find that several orders have been passed by the officers of the depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not attracted. The very purpose of requiring a certificate to be produced by a professional Chartered Accountant and insisting on the fact that the Chartered Accountant should be one who is responsible for auditing the companies accounts either statutorily is to ensure that the Chartered Accountant is familiar with the accounts of the company, their practices and also would be knowing and would be in a position to verify the accounts and such certificates shall be accepted. 12. In our opinion, the CA s certificate produced by the appellant fulfills the requirements and is sufficient to come to the conclusion that appellants are eligible for the refund. 13. Therefore, we find that the order passed by the Commissioner (A) needs no interference and has to be upheld. At this stage, the learned counsel made a request that besides the fact that a major amount is involved this appeal, all the subsequent refund claims have been kept pending by the officers awaiting decision of the Tribunal in this case. He seeks a direction to the original authority that the refund claims should be settled within a specified time limit. We find that this is a reasonable request. Accordingly, we d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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