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TMI Blog2024 (6) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted refund claim for refund of 4% SAD. However, the refund application was rejected on the ground that the CA certificate has not stated as how the unjust enrichment was not applicable. Aggrieved by said order, an appeal was filed before Commissioner (Appeals) and considering the issue, the Commissioner (Appeals) remanded the matter to adjudication authority with a direction to the appellant to submit explanation from their CA as to how they arrive at the conclusion that the duty amount was not passed on to the customers. Thereafter adjudication authority considered the issue and even after submitting detailed explanation by the statutory auditor, the adjudication authority allowed refund partially. An amount of Rs. 3,29,226/- was al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods have been sold to buyers (including those cases where the goods were subjected to RSP/MRP based assessment at the time of import) vide various invoices does not include the component of the said 4% Additional Duty of Customs levied under Section 3(5) of the Customs Tariff Act, 1975 which was paid at the time of import. As such, we certify that the claimant has not passed on the incidence of the 4% Additional Duty to the buyer or any other person and hence the requirement to rule out unjust enrichment to the importer/claimant is fulfilled in respect of all goods imported and sold as covered by the subject claim (as detailed in the correlation sheet enclosed herewith)." 3. The learned counsel further submits that the issue is no more r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The learned counsel also drew my attention to the decision of the Tribunal in the matter of CC, Bangalore Vs. Apple India Private Limited - 2014 (301) E.L.T. 675 (Tri.-Bang.), wherein it is held that - "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 CA's certificate has not categorically explained how ACD has not been passed on, there are no sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... importer's annual financial accounts under the Companies Act or any statute explaining how the burden of 4% CVD has not been passed on by the importer to fulfil the requirement of unjust enrichment in addition to a self-declaration". Subsequently based on the representation made by Trade and Industrial Associations, Board issued further clarifications and also felt the need for relaxation of procedural requirements and therefore, another circular was issued on 13-10-2008. In this circular, the Board observed as under "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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shown the due amount as receivable in the financial year 2007-08 and it is shown as receivable only for the financial year 2008-09. For the above reasons, the appellant is not eligible for the refund as claimed by them. 7. Heard both sides. The limited issue in the present appeal is regarding the defect related to refund claim submitted by the appellant. It is the admitted fact that appellant had paid 4% SAD at the time of import and the appellant had also paid VAT as applicable while selling the goods. The appellant also complied with the condition No. 2(b) in the Notification No. 102/2007 dated 14.09.2007 where it is stated that "the importer, while issuing the invoice for sale of the said goods, shall specifically indicate in the invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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