2016 (12) TMI 967 - AT - Customs

Refund claim - SAD - certificate from Chartered Accountant under dispute - Held that - Adjudicating authority while sanctioning the refund claim found all the conditions of Notification No.102/2007-Cus dated 14.09.2007 as fulfilled - It is observed from the relevant para of CBEC Circular dated 13.10.2008 that the same does not use the words regular Chartered Accountant, but only clarifies that certificate given by any other independent Chartered Accountant would not be acceptable for the purpose of 4% SAD refunds - Respondent accordingly appointed a new Chartered Accountant, who becomes their regular Chartered Accountant and cannot be considered as a onetime independent Chartered Accountant giving a certificate - Decided in favor of the assessee.

Summary

Issues Involved:
Refund claim under Notification No.102/2007-Cus dated 14.09.2007 sanctioned by Deputy Commissioner; Appeal filed by Revenue against Order-in-Appeal dated 29.04.2011 dismissing the appeal; Dispute over Chartered Accountant certificate requirement for refund claim.

Analysis:
The appeal before the Appellate Tribunal CESTAT Kolkata involved a dispute regarding a refund claim of 4% SAD paid by the respondent at the time of import. The Adjudicating authority had sanctioned the refund claim under Notification No.102/2007-Cus dated 14.09.2007 after finding all the specified conditions fulfilled. The Commissioner(Appeals) also confirmed compliance with the conditions by the respondent. The Revenue's appeal was based on the argument that the Chartered Accountant certificate provided by the respondent did not meet the requirements of para 2(vii) of CBEC Circular No.16/2008-Cus dated 13.10.2008. The Circular stipulated that the certificate should be from an independent Chartered Accountant. However, the respondent had appointed a new Chartered Accountant due to the unavailability of their previous Chartered Accountant who resided in Delhi and frequently traveled abroad, causing delays in providing necessary services. The new Chartered Accountant, a partner of M/s. SARR & Associates, was appointed as the regular Chartered Accountant of the respondent and certified their financial records. The Tribunal noted that the Circular did not specify the term "regular Chartered Accountant" and emphasized that the new Chartered Accountant in this case was not a one-time independent accountant but a regular appointee. Therefore, the Tribunal upheld the Order-in-Appeal dated 29.04.2011, dismissing the Revenue's appeal.

In conclusion, the Tribunal found that the appointment of a new Chartered Accountant by the respondent, who became their regular accountant, did not violate the requirements of the Circular or the conditions of the Notification. The Tribunal's decision was based on the understanding that the new Chartered Accountant was not a temporary or one-time independent accountant but a permanent appointee fulfilling the necessary criteria for certifying the refund claim. As a result, the appeal filed by the Revenue was dismissed, affirming the decision of the first appellate authority.