9911796707
TMI Blog2024 (5) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 102/2007-Cus dated 14.09.2007, the clarifications issued in CBEC Circular No. 6/2008-Customs dated 28-4-2008 and Circular No.18/2010-Customs dated 8.7.2010 and the discussion and findings as above. I find that the various contentions put forth by the 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 seven Order-In-Originals as detailed below allowing the refund claims filed by the appellant:- S No Order in Original No & Date Amount 1 594/REFUND/ICD-LONI/2017-18 dated 15.09.2017 6,25,224/- 2 595/REFUND/ICD-LONI/2017-18 dated 15.09.2017 6,75,157/- 3 596/REFUND/ICD-LONI/2017-18 dated 18.09.2017 83,044/- 4 656/REFUND/ICD-LONI/2017-18 dated 06.10.2017 3,45,571/- 5 709/REFUND/ICD-LONI/2017-18 dated 06.11.2017 3,42,578/- 6 733/REFUND/ICD-LONI/2017-18 dated 27.11.2017 2,59,488/- 7 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counts Committee whereby the refund of any duty was proposed to be made only to the person who ultimately bears the incidence of such duty. He also submitted that it would be necessary for a verification to be done to find out as to who actually bore the burden of duty. The refund can be granted only to the person who has paid the duty and not to anyone else. In all such cases it would be the ultimate buyer 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 clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority has failed to appreciate the contention of revenue that the importer has failed to establish that the burden of SAD has not been passed on to the buyer of the goods." 3.1 We have heard Shri Manish Raj, Authorized Representative for the Revenue who reiterates the grounds taken in the appeal. 3.2 None appeared on behalf of the Respondent. 4.1 We have considered the impugned order along with 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 (he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well. The only method to ensure this is to make it conditional to satisfy the principle of unjust enrichment. In this regard, in the earlier circular, it has been provided that the importer may produce a certificate from the statutory auditor/CA who certifies that Annual Accounts of the importer (under the Companies Act, 1956 or any statute) to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal referred in the order of the Commissioner reproduced below:- "4.13. l observe that the impugned appeals praying rejection of the refund on the ground of unjust enrichment is inherently wrong and contrary to the law laid down by the Hon'ble Courts and Tribunal in identical circumstances in a catena of judgments detailed as under: (i) Commissioner of Customs Apple India 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 fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the amount of refund has not been shown in the receivables in the accounts of the appellant. Further I find that as per the Notification No. 102/2007 and also the subsequent Circular No. 18/2010, dated 8-7-2010, it is not the requirement at all that the said claim should be shown as receivables in the books of account. Further I find that Board circular has clarified that field 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porter is able to show that he has paid 4% SAD (CVD) and subsequently the same goods has been sold in the domestic market and sales tax/VAT for which has been paid. The Notification requires only these aspects to be proved by the documents. Further in view of the provisions of Section 11B, the Board has prescribed that the unjust enrichment is required to be examined and for this purpose 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
