2019 (5) TMI 929 - AT - Customs

Refund of SAD - N/N. 102/2007-Cus dt. 14/09/2007 - appellant filed all the requisite documents as required under Notification and also complied with all the conditions of the notification - refund denied for some extraneous reasons which is contrary to the notifications and circulars issued by the Board - HELD THAT - The appellant have complied with the Notification No.102/2007 and filed the refund claim of 4% additional duty of customs levied under Section 3(5) of the Customs Tariff Act, 1975. Appellant has annexed with the refund claim all the documents which are required as per the notification and circulars issued by the Board from time to time. Further the appellant has also attached a certificate issued by the statutory Chartered Accountant who has certified the payment of VAT by the appellant but the said certificate has also not been believed by both the lower authorities. All the decisions as relied upon by the appellant cited supra have held that a Chartered Accountant certificate should be accepted to extend the benefit of Notification No.102/2007-Cus. dt. 14/09/2007 - reliance placed in the case of Gujarat Boron Derivatives Pvt. Ltd. 2012 (11) TMI 265 - CESTAT, AHMEDABAD , it has been held by the Tribunal that the circular issued by the Board clearly shows that Chartered Accountant certificate is sufficient if it explains how the burden has not been passed on and the exemption is available if the importer shows that he has paid 4% SAD(CVD) and subsequently the goods have been sold in the domestic market and VAT has been paid. - further, the Board in the Circular No.6/2008-Customs dt. 28/04/2008 has clarified that Chartered Account can also issue certificate certifying that the burden of 4% CVD has not been passed on to fulfil the requirement of unjust enrichment. It is also a well settled law that no extraneous condition can be introduced into any notification and insistence upon such conditions cannot be made by the Revenue when there is no such condition in the notification. Refund allowed - appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund of 4% additional duty on imported goods under Notification No.102/2007-Cus. dt. 14/09/2007.

Analysis:
The appellant imported polished marble slabs and filed a refund application for 4% additional duty paid on the goods. The original authority rejected the refund application, which was upheld by the Commissioner(Appeals). The appellant contended that all necessary documents were submitted as per Notification No.102/2007, including Chartered Accountant certified VAT challans, and argued that the findings in the Order-in-Original supported their claim. The appellant cited various judicial precedents to support their argument that the Chartered Accountant certificate is sufficient to prove unjust enrichment. The learned counsel emphasized that the refund claim should have been granted based on compliance with the relevant notifications and circulars issued by the Board.

The learned AR defended the impugned order, but the Tribunal found that the appellant had indeed complied with Notification No.102/2007 by submitting all required documents, including a certificate from a Chartered Accountant confirming VAT payment. The Tribunal noted that the lower authorities did not accept the Chartered Accountant certificate, despite precedents indicating its validity. Referring to the Gujarat Boron Derivatives Pvt. Ltd. case, the Tribunal highlighted that the circular issued by the Board acknowledged the sufficiency of the Chartered Accountant certificate in demonstrating that the burden of duty had not been passed on. Additionally, the Tribunal cited the Circular No.6/2008-Customs, which clarified the role of Chartered Accountants in certifying unjust enrichment.

In considering the appellant's compliance with the notifications and circulars, the Tribunal applied legal principles from the Shanti Enterprises case, emphasizing that changing the goods' description on domestic invoices should not be a basis for denying a refund entitled to the appellant. The Tribunal reiterated that introducing extraneous conditions not specified in notifications is impermissible, and compliance with stated conditions should suffice for claiming refunds. Consequently, the Tribunal set aside the impugned order, allowing the appeal and granting consequential relief to the appellant.