2012 (11) TMI 265 - AT - Customs

Refund Held that - Claimant have to submit the Chartered Accountant s certificate certifying that the burden of SAD (4%) has not been passed on by the importer to customers to fulfil the requirement of unjust enrichment - certificate from a Chartered Accountant is sufficient - appellant is eligible for refund - application for modification of stay applications are allowed, pre-deposit is waived

Summary

Issues:
1. Modification of stay order regarding pre-deposit requirement for refund claims.
2. Interpretation of provisions relating to unjust enrichment in the context of refund claims for additional duty of Customs (SAD).
3. Consideration of Chartered Accountant's certificate as evidence to prove non-passing of burden to customers.
4. Application of accounting principles in determining unjust enrichment.
5. Precedent set by previous Tribunal decisions on similar refund claims.

Analysis:
1. The appellant sought modification of a stay order requiring a specific deposit against each demand for refund claims. The appellant argued that a previous Tribunal order on a similar issue favored them, thus waiving the pre-deposit requirement. The respondent, however, contended that the deposit should stand until after a hearing. The Tribunal considered both arguments.

2. The refund claims in question pertained to additional duty of Customs (SAD) paid on imported goods sold in the domestic market after VAT payment. The exemption notification allowed for a refund of SAD under certain conditions. The issue revolved around unjust enrichment, with the requirement of proving non-passing of burden to customers through specific documents, including a Chartered Accountant's certificate.

3. The Tribunal examined the Chartered Accountant's certificate provided by the appellant, which certified no direct or indirect collection of SAD from customers. The Tribunal noted that the certificate, along with the documents submitted, fulfilled the necessary conditions for refund claims. The Tribunal disagreed with the detailed examination by the Commissioner on accounting principles, emphasizing the focus on unjust enrichment.

4. The Tribunal highlighted the Board's circular, which stated that the Chartered Accountant's certificate sufficed if it explained the non-passing of burden. The Tribunal found that the appellant met the requirements specified in the notification and Section 11B, emphasizing the need to assess unjust enrichment based on the provided documents and certificates.

5. Previous Tribunal decisions and case law were cited to support the appellant's eligibility for refund claims. The Tribunal noted similar rulings in other cases and found no need for pre-deposit, ultimately allowing the modification of the stay order and granting the appeals with consequential relief to the appellants. The Tribunal opted to decide the appeals finally rather than prolonging the process, considering it in the interest of justice.

This detailed analysis of the judgment provides a comprehensive understanding of the issues addressed and the Tribunal's reasoning in reaching its decision.