2015 (11) TMI 818 - AT - Customs

Denial of refund claim in terms of Notification No.102/2007-Cus. dated 14.9.2007 - Levy of additional duty of customs - Unjust enrichment - Held that - As it is seen from the reproduced part of the Circular, a certificate by the Chartered Engineer certifying that the burden of CVD has not been passed on to the buyer and a self-declaration by the buyer is sufficient to establish that the duty burden has not been passed on and the condition of unjust enrichment will not apply. Though the original adjudicating authority has accepted the fact of said certificate on record, but he has not followed the same on the sole ground that details as to how such conclusions were arrived at by the Chartered Engineer, do not stand given in the said certificate. - no such details are required to be given in the Chartered Engineer certificate. Secondly, the Chartered Engineer s certificate is admittedly based upon the examination of the accounts maintained by an assessee and is presumed to have been given after verification of the same. In terms of the Board s Circular also such certificate if given by the Chartered Accountant would suffice - Impugned order is set aside - Decided in favour of assessee.

Summary

Issues Involved:
1. Claim for refund of additional duty of customs under Notification No.102/2007-Cus.
2. Rejection of refund claims by original adjudicating authority on grounds of unjust enrichment.
3. Appeal filed before Commissioner (A) and rejection of the appeal.
4. Interpretation of Notification No.102/2007-Cus. in relation to exemption of goods.
5. Consideration of Chartered Engineer certificate and its acceptance in establishing unjust enrichment.
6. Application of Board's Circular No.6/2008-Cus. on unjust enrichment.

Analysis:

1. The appellant imported earth moving equipment parts and paid additional duty of customs under Section 3(5) of the Customs Tariff Act. They claimed a refund of this duty as per Notification No.102/2007-Cus., which exempts goods imported for subsequent sale from the additional duty, subject to specific conditions. The original adjudicating authority rejected the refund claims citing unjust enrichment due to a Chartered Engineer certificate indicating the sale price did not include the duty component.

2. On appeal before Commissioner (A), a different ground was taken, highlighting another notification exempting the imported goods from a specific duty. The Commissioner concluded that the appellant should have availed the unconditional exemption instead of paying and claiming a refund. The issue of unjust enrichment was not addressed in this context, leading to the rejection of the appeal.

3. The appellate tribunal analyzed the notifications in question and emphasized that Notification No.102/2007-Cus. applies to all goods falling within the First Schedule to the Customs Tariff Act, without restriction based on other exemptions. Regarding unjust enrichment, the tribunal referred to Board's Circular No.6/2008-Cus., which allows a certificate from a Chartered Accountant to establish that the duty burden was not passed on. The tribunal found the Chartered Engineer's certificate sufficient and set aside the original rejection, granting relief to the appellant.

4. The tribunal clarified that the details of how the Chartered Engineer arrived at the conclusion were not necessary in the certificate, as it is presumed to be based on thorough examination of the accounts. Following the Circular's guidelines, the tribunal accepted the certificate as evidence of non-passing of duty burden and overturned the rejection based on unjust enrichment. The appeal was allowed, providing consequential relief to the appellant.