TMI Blog2013 (10) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... tries made in the books of account in the course of the year - The revenue, while alleging lacunas in the certificate presumes that accounts are drawn up only at the year end and not before that - This assumption is absurd as any assessee, particularly companies of the assessee's size and operations, would maintain regular books of account in the course of the year - The certificate of the Chartered Accountant dated 17.02.2009 clearly states that in the beginning itself that the said certificate was issued on verification of the books of account of the company - There is nothing wrong in the CA's certificate. The other discrepancy which has been pointed out in the revenue's appeal is that the assessee had initially claimed before the lower authority that it was not maintaining a bill of entry-wise ledger, though later on the auditor was able to give reconciliation between the balance sheet and the bill of entry - It was clarified by the counsel for the respondent that no ledger is ever maintained bill of entry wise and therefore the clarification given by the assessee to the lower authority was perfectly correct - The clarification, however, did not imply that no ledgers are ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dary Higher Secondary Education Cess (S HEC) leviable thereon including on those quantity of Crude oil shown to have been excess received in the bonded warehouse and ordered for recovery of interest at appropriate rate on the said duties under Section 18(3) of Customs Act, 1962. Accordingly, on being aggrieved with the said impugned Order-in-Original, the respondent preferred appeals before the Commissioner (Appeals), who vide Order-in-Appeal, set aside the Order-in-Original as non- maintenable , which prompted the respondent to file refund claims, in respect of the amount paid by them towards the payment of NCCD and Cess , which vide impugned Order-in-Original, were sanctioned but the amounts sanctioned were transferred to Consumer Welfare Fund, on the grounds of Commissioner of Customs (Appeal), the Department preferred appeals before the Tribunal, but the appeals did not survive on jurisdiction as well as on merit. 3. Aggrieved by such an order, the respondent-assessee preferred various appeals before the first appellate authority. The first appellate authority examined the entire matter and also the records produced before him for rebuttal of the presumption unjust enrichme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court in the case of MIL India Ltd. - 2007 (210) ELT 188 (SC) , is also on the same issue. It is his submission that various Benches of the Tribunal have also followed the judgment of the Hon'ble Apex Court in the case of MIL India Ltd and held that the Commissioner (Appeals) has no power of remand after the amendment to Section 128A of Customs Act, 1962 w.e.f . 11.05.2001. It is his submission that the remand order of the first appellate authority needs to be set aside and the matter should be remanded back to him for reconsidering the issue based upon the documentary evidences available on record in his file. 4.1 Secondly, on merit, It is his submission It is his submission it is case of captive consumption of crude palm oil imported and cleared by the respondent (100% EOU) on payment of NCCD, Education and Higher Secondary Education Cess which has become refundable by virtue of Tribunal's Final Order No.A /536-545/WZB/AHD/2011, dt.17.03.2011 . 4.2 It is his submission that the adjudicating authority has held that the refund claim of the respondent is hit by the bar of unjust enrichment. As such, he has transferred the refund amounts to the Consumer Welfare Fund. However ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his findings, in the impugned order, at Para 8, has clearly recorded that the assessee has succeeded in establishing that the duty has not been passed on and has passed the hurdle of unjust enrichment. It is the submission that after giving categorical finding, the first appellate authority, in order to ensure that the refund which is sanctioned to the respondent is not expensed out and not recorded as expense due to considerable time gap, is directed to check out the correctness of quantification of the refund claim. It is the submission the findings of first appellate authority are very clear. He would submit that the decision of them Tribunal in the case of Reliance Communication Infra Ltd. - 2012 (279) ELT 85, Birla Tyres - 2004 (170) ELT 243 (Tri-Kolkata), Utopia India Pvt.Ltd . - 2012 (26) STR 577 (Tri-Bang) , M/s Kbace Technologies Pvt.Ltd . - 2012 (280) ELT 526 (Tri-Bang) are directly on the point. It is the submission that in all these cases, the Tribunal has clearly held that after holding on merit in favour of the assessee, if the first appellate authority remits the matter back to adjudicating authority to quantify the correct amount, it would not be called as remand pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been expensed out or absorbed subsequently in the costing of the final product. 6. We have considered the submissions made at length by both sides and perused the records. 7. The grievance of the Revenue in the present appeal is twofold: i) that the Commissioner (Appeals) has erred in holding that the assessee had succeeded in establishing that the incidence of duty had not been passed on; and ii) that the Commissioner (Appeals) has erred in remanding the matter back to the lower authorities for re-verification even though the statute did not confer any power of remand upon the Commissioner (Appeals) 8. In the course of the arguments it was accepted by the counsel for the revenue that during the pendency of the present appeal, the lower authority had carried out the process of re-verification and on being satisfied that the facts as pleaded by the assessee-importer were correct and had sanctioned the refund and remitted the money to the assessee. In view of the process of verification carried out by the lower authorities during the pendency of this appeal, many of the revenue's contentions, mainly concerning with the accounting treatment and the excess duty paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of the Gujarat High Court in the case of Medico Labs was also taken note of and it has been held that the Commissioner (Appeals) still holds the power to remand matters. 11. In the present case, the observation made by the Commissioner (Appeals) in para 8 cannot be regarded as amounting to a remand. In the present case, the directions given by the Commissioner (Appeals) for re-verifying a few aspects of the matter with a view to safeguard the interest of the revenue cannot be considered as amounting to a remand to the lower authority. It is clear from the reading of para 7.23 and para 8 that all the issues which were in dispute and which constituted the lis between the revenue and the assessee have been finally and conclusively resolved and held in favour of the assessee. The Commissioner (Appeals), after giving a detailed findings on various aspects came to a definite conclusion in paras 7.23 that "the adjudicating authority has erred in holding that the appellant could not rebut the presumption of unjust enrichment". The Commissioner (appeals) further concluded in the first sentence of para 8 as under: "In view of the discussions herein above, I find that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that an order for quantification of refund is not a Refund Order. These directions should have amounted to remand, if any of the issues in dispute had been left unresolved by the Commissioner (Appeals) and sent back to the lower authority for a fresh decision or adjudication. This has not happened in the present case as all the issues raised by the Assistant Commissioner in the Adjudication Order have been decided conclusively by the Commissioner (Appeals) as is evident from paras 7.23 and 8 of the impugned order extracted above. 13. One of the other arguments on behalf of the revenue was that the Commissioner (Appeals) was not justified in relying entirely upon the certificate of Chartered Accountant for coming to the conclusion that the burden of unjust enrichment had not been discharged. This submission of the revenue is incorrect as the Commissioner (Appeals) has not gone only by the certificates of Chartered Accountant but has verified the correctness of the certificates by examining the balance sheets, ledger accounts, journal entries and certificates of the Accounts Heads of the company. A detailed clarification given by the Auditor vide his Certificate dated 05.04.2011, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the beginning itself that the said certificate was issued on verification of the books of account of the company. There is, therefore, nothing wrong in the CA's certificate. 15. The other discrepancy which has been pointed out in the revenue's appeal is that the assessee had initially claimed before the lower authority that it was not maintaining a bill of entry-wise ledger, though later on the auditor was able to give reconciliation between the balance sheet and the bill of entry. It was clarified by the counsel for the respondent that no ledger is ever maintained bill of entry wise and therefore the clarification given by the assessee to the lower authority was perfectly correct. This clarification, however, did not imply that no ledgers are maintained by the assessee. From the ledgers, the journal vouchers and the journal entries contained in the ledgers it was possible to correlate the excess payments shown as "receivable" with the specific bill of entry. There was, therefore, no contradiction whatsoever in the stand taken by the assessee. 16. Yet, another point made on behalf of the revenue is that the Commissioner (Appeals) has erred in deciding the issue before him by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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