2013 (12) TMI 351 - AT - Customs

Refund claim of additional duty of customs - Exemption Notification No. 102/2007-Cus., dated 14-9-2007 - Unjust enrichment - Held that - Commissioner (Appeals) has recorded a finding that the Central Excise invoice issued by the appellant did not show that duty element separately, in absence of duty element shown separately in the Central Excise invoice and in view of the fact that Chartered Accountant s certificate certifying that respondent did not collect duty and the decisions of the Tribunal cited by the learned Chartered Accountant, no merit in the appeal filed by the Revenue and the same has to be rejected - Following decision of COMMISSIONER OF CENTRAL EXCISE, SURAT-I Versus SHRINATHJI DYG. 2009 (12) TMI 641 - CESTAT, AHMEDABAD - Decided in favour of assessee.

Summary

Issues:
Refund claim of additional duty of customs (4% SAD) under exemption Notification No. 102/2007-Cus., unjust enrichment, acceptance of refund claim for the year 2008-09 but rejection for the year 2007-08, applicability of Tribunal's decision in Shrinathji Dyg. v. C.C.E., Surat, clarification on unjust enrichment by Board through Circular No. 6/2008-Customs.

Analysis:
The appellant filed a refund claim for additional duty of customs (4% SAD) under exemption Notification No. 102/2007-Cus., amounting to Rs. 3,67,634. The adjudicating authority sanctioned the refund but ordered the amount to be credited to the Consumer Welfare Fund due to unjust enrichment concerns.

The appeal was filed, and the Commissioner (Appeal) allowed the refund claim for the year 2008-09 but rejected it for the year 2007-08. The rejection was based on the appellant booking the expenditure towards SAD as an 'expense' initially, which was later revised along with payment of income tax and a certificate from a Chartered Accountant.

The appellant argued that the issue was covered by a Tribunal decision in Shrinathji Dyg. v. C.C.E., Surat, where it was held that if the duty element was not separately shown in the invoice and recovered from customers, a C.A. certificate sufficed for fulfilling conditions of the exemption notification.

It was emphasized that the SAD was not separately collected from customers, and the accounts were revised with income tax paid subsequently. The principles of unjust enrichment were discussed, citing a Board clarification through Circular No. 6/2008-Customs, stating that a certificate from a statutory auditor/Chartered Accountant certifying that duty incidence was not passed on sufficed for refund purposes.

Consequently, the appeal was allowed with benefits to the appellant, as the issue was found to be covered by the Tribunal decision and the Board's clarification on unjust enrichment.