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TMI Blog2024 (5) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant department in the grounds of these appeals have no substance, therefore the appeals are liable to be rejected being devoid of merit. I therefore, uphold all the impugned Orders of the adjudicating authority sanctioning refunds of the additional duty of Customs (SAD) to the respondent and reject these departmental appeals." 1.2 Commissioner (Appeal) has by the impugned order disposed of seven appeals filed by revenue against four Order-In-Originals as detailed below allowing the refund claims filed by the appellant:- S No Order in Original No & Date Amount 1 716/SAD REFUND/NOIDA CUSTOMS/2017 dated 13.10.2017 4,38,752/- 2 739/SAD REFUND/NOIDA CUSTOMS/2017 dated 26.10.2017 3,90,856/- 3 740/SAD REFUND/NOIDA CUSTOMS/2017 dated 26.10.2017 1,27,807/- 4 741/SAD REFUND/NOIDA CUSTOMS/2017 dated 26.10.2017 3,84,426/- 2.1 Appellant had filed the refund claims, claiming refund of SAD paid by them in terms of Notification No.102 of 2007 Customs dated 14.09.2007. 2.2 The Original Authority decided/adjudicated all the refund claims in favour of the appellant. 2.3 Aggrieved, Revenue challenged these Orders-In-Original before Commissioner (Appeals) who has vide the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the goods. If the ultimate consumer can not be identified, the amount would be retained in the fund and utilised for the benefit of the consumers. 4. After duly considering the arguments of both the sides, Hon'ble Supreme Court in Para 16 of the judgement mentioned above stated that "the doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law." Further at para 19 of the said judgement, the Hon'ble Supreme Court mentioned that "the sine qua non for a claim for refund as contemplated in Section 11B of the Act is that the claimant has to establish that the amount of duty of excise in relation to which such refund is claimed was paid by him and that the incidence of such duty has not been passed on by him to any other person". 5. After duly considering the arguments of both the sides, Hon'ble Supreme Court in Para 21 of the same judgement mentioned above stated that "A consumer can make an application for refund is clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds stated in the appeal memo and submissions made at the time of arguments. 4.2 Notification No.102/2007-Cus dated 14.09.2007 provides for refund of SAD to the dealer when he issues invoice for further sale of the goods charging VAT. The text of Notification is reproduced below: "G.S.R. (E).- In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the goods falling within the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India for subsequent sale, from the whole of the additional duty of customs leviable thereon under sub-section (5) of section 3 of the said Customs Tariff Act (hereinafter referred to as the said additional duty). 2. The exemption contained in this notification shall be given effect if the following conditions are fulfilled: (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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 fulfill the requirement of the condition that the incidence of duty burden has not been passed on by the importer to any other person for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Pvt Ltd 2014 (301) ELT 675 (Tri Bang): Refund-Unjust enrichment - Assessee claimed refund of Special Additional Customs Duty (SAD) Notification No. 102/2007-Cus. Refund rejected holding assessee failed to prove that incidence of duty had not been passed on to customers Certificates in order to fulfill test of unjust enrichment HELD No dispute that all the conditions in terms of Notification has been fulfilled-B.E & C Circular Nos. 6/2008-Cus, dated 28-4-2008 and 16/2008-Cus.. dated 13- 10-2008 clarified that certificates from statutory auditor/Chartered Accountant shall be acceptable in order to fulfill obligation to show that unjust enrichment is not attracted - Regular auditors have certified that burden of incidence of duty has not been passed on and assessee have taken into account this factor while determining price of traded goods CA's Certificates produced by assessee fulfill the requirement and sufficient to come to conclusion that assessee are eligible for refund-Section 27 of Customs Act. 1962. The above judgment has since been affirmed by the Hon'ble Supreme Court as reported in [Commissioner v. Apple India Pvt. Ltd.-2015 (320) Ε.Ι.Γ. &Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formations need not insist on the production of audited balance sheet and Profit & Loss Account and the certificate of the CA is sufficient to grant the refund claim. In the present case, the CA certificate was produced but the same was not considered. Further I find that in view of the various decisions relied upon by the appellant which clearly states that refund should not be denied merely on technical violations. In view of the above circumstances, I am of the view that the impugned order rejecting the refund claim is not sustainable in law and therefore I set aside the same by allowing the appeal of the appellant with consequential relief, if any." 4.7 In case of Gujarat Boron Derivatives Pvt. Ltd [2013 (29) S.T.R. 443 (Tri. - Ahmd.)] following was held:- "4. In this case, the refund claims sanctioned by the original adjudicating authority and on an appeal filed by the Revenue, the impugned order was set aside resulting in demand for the refund amount sanctioned. Central Board of Excise and Customs issued an instruction vide Circular No. 18/2010-Cus., dated 8-7-2010 wherein the Board has stated that there is no need to look into the balance sheet and Profit & Loss A/c to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the Chartered Accountant's certificate should be produced. Going by the documents and the Chartered Accountant certificates in this case, I find that in respect of all the refund claims the appellants have fulfilled the required conditions. I am not impressed by the detailed examination given by the Commissioner about accounting. What is required to be seen is whether there is unjust enrichment or not. 5. Further I also find that as submitted by the ld. Counsel, the very same issue came up before the Tribunal in respect of twelve refund claims of the very same appellant and this Tribunal vide order dated 22-9-2011 allowed the appeal filed by the appellants. Further the ld. Counsel also relied upon the decisions of the Tribunal in the case of STP Ltd. v. Commr. of Customs (Import), Mumbai reported in 2011 (267) E.L.T. 110 (Tri.-Mumbai) wherein a similar view was taken. In that case also the Tribunal took the view that the certificate from a Chartered Accountant is sufficient and in that case also the refund claim was related to the year 2007. The issue is already decided by the said two decisions and I am also convinced on the facts and circumstances of this case that appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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