2020 (6) TMI 620 - AT - Customs

Refund of SAD - Chartered Accountant Certificate which was required to be submitted along with claim of refund in terms of Notification No. 102/2007-Cus. Dt. 14/09/2007 was issued after the death of the said Chartered Accountant - CBEC Circular No.06/2008-Cus. dt. 28/04/2008 - HELD THAT - It is the request of the appellant that issue may be remanded to the Original Adjudicating Authority to examine the issue regarding non-availment of Cenvat Credit in terms of the Notification and Circular. It is also the fact that the refund was sanctioned by the Refund Sanctioned Authority which was not reviewed and fresh Show Cause Notice was issued for recovery of the refund sanctioned. However, since the request of ld. Advocate is only for remand. It is fair to the both appellant and Department to have a re-look of the Chartered Accountant Certificate and deal with the issue as per law - Appeal allowed by way of remand.

Summary

Issues:
1. Validity of the refund claim submitted by the appellant.
2. Requirement of Chartered Accountant Certificate for refund claim.
3. Department's demand for recovery of the refund.
4. Submission of a new certificate by another Chartered Accountant.
5. Request for remanding the matter back to the Adjudicating Authority.

Analysis:
1. The appeal was filed against the Order passed by the Commissioner (Appeal), Customs, Kolkata, sustaining the Order of the Primary Adjudicating Authority and dismissing the appellant's appeal. The appellant, M/s. Joy International, had filed a refund claim of ?3,70,611 on the sale of imported goods. The Department raised concerns regarding the Chartered Accountant Certificate required for the refund claim, as it was issued after the Chartered Accountant's death. The Department relied on CBEC Circular No. 06/2008-Cus. to support its decision to demand recovery of the refund.

2. The appellant's advocate argued that the refund sanctioned Order could not be reopened unless reviewed under the Provisions of the Customs Act, which had not been done in this case. The appellant also submitted a fresh certificate from another Chartered Accountant in compliance with the Circular. The appellant claimed ignorance about the previous Chartered Accountant's death and requested the matter to be remanded back to the Adjudicating Authority for consideration of the new certificate.

3. The Department, represented by the Ld. DR, reiterated the grounds stated in the impugned Order, opposing the appellant's arguments. After hearing both parties and examining the case record, the Tribunal acknowledged the appellant's request for remand to the Original Adjudicating Authority to re-examine the issue of non-availment of Cenvat Credit as per the Notification and Circular. The Tribunal noted that the refund was sanctioned by the Refund Sanctioned Authority without a review, and a fresh Show Cause Notice was issued for refund recovery.

4. The Tribunal, considering the fairness to both the appellant and the Department, allowed the appeal by way of remand. It was decided that a re-look at the Chartered Accountant Certificate and a proper handling of the issue in accordance with the law were necessary. The judgment concluded with the decision to remand the matter back to the Adjudicating Authority for further examination and appropriate action.

Conclusion:
The Tribunal's decision to remand the matter back to the Adjudicating Authority for re-examination of the Chartered Accountant Certificate and proper consideration of the refund claim in compliance with the law reflects a fair and balanced approach to address the issues raised by both the appellant and the Department.