2013 (2) TMI 64 - AT - Customs

Refund of 4% of Special additional duty denied - unjust enrichment - Held that - The Chartered Accountant s certificate is specific to the Bill of Entry and also indicate that the Chartered Accountant is a statutory auditor of appellant. As against such a specific certificate, it is seen that Commissioner (Appeals) has analysed the balance sheet and come to a conclusion that an amount of ₹ 1,11,357/- has been debited in expenses accounts in the financial year 2007-2008. It is not very clear as to how first appellate authority has come to such a conclusion. Also as found that in CBEC circular No.18/2010-Cus, dt.08.07.2010 at Para 6 specifically directing field formation in respect of refund claim arising on S.A.D paid by the assessee as some field formations have also raised certain doubts whether the audited Balance Sheet and P/L A/C have to be examined in respect of the current financial year for scrutiny of unjust enrichment aspect. In this regard, the issue has been examined by the Board and it has been decided that the field formations shall accept a certificate from Chartered Accountant for the purpose of satisfying the condition that the burden of 4% CVD has not been passed on by the importer to any other person. Also the importer shall also make a self-declaration along with the refund claim to the effect that he has not passed on the incidence of 4% CVD to any other person. Hence, there is no need for insisting on production of audited Balance Sheet and Profit and Loss Account in these cases. Thus the appellant herein has satisfied all the conditions required for claiming refund of Special Additional Duty paid by him. See Gujarat Boron Derivatives Pvt. Ltd. (2012 (9) TMI 207 - CESTAT, AHMEDABAD) and STP Ltd (2010 (12) TMI 80 - CESTAT, MUMBAI)- in favour of the assessee.

Summary

Issues:
Refund of special additional duty amounting to Rs.1,11,347/-; Rejection of refund claim by first appellate authority; Justification of refund claim by adjudicating authority; Question of unjust enrichment; Analysis of Chartered Accountant's certificate; Interpretation of CBEC Circular No.18/2010-Cus; Comparison with previous judgments by the Tribunal.

Analysis:
The appeal before the Appellate Tribunal CESTAT Ahmedabad concerned the refund of 4% of the special additional duty amount paid by the appellant, totaling Rs.1,11,347/-. The appellant had imported goods, paid the duty, and filed a refund claim, which was initially allowed by the adjudicating authority. However, the first appellate authority reversed this decision, leading to the appeal. The key issue revolved around the justification of the refund claim and the question of unjust enrichment, with the departmental authorities arguing that the burden had been passed on based on revised returns showing the amount as receivable in the balance sheet.

The appellant's counsel highlighted the findings of both the adjudicating authority and the first appellate authority, along with a Chartered Accountant's certificate supporting the non-passing on of the duty burden to the buyer. The certificate confirmed that the duty amount had not been charged as expenses but shown as recoverable in the books, indicating no unjust enrichment. The Tribunal noted the specific details in the certificate, emphasizing the statutory auditor's verification and the absence of burden passing. This was contrasted with the first appellate authority's analysis of the balance sheet, which raised doubts about the expenses account entry.

Reference was made to a CBEC circular directing the acceptance of Chartered Accountant certificates for verifying non-passing of duty burden, eliminating the need for audited balance sheets in such cases. The Tribunal found that the appellant had met all conditions for the refund, citing precedents like the Gujarat Boron Derivatives Pvt. Ltd. case and the STP Ltd. case, where similar views were upheld. Consequently, the impugned order was deemed incorrect and set aside, allowing the appeal with any consequential relief.

In conclusion, the Tribunal's detailed analysis focused on the Chartered Accountant's certificate, compliance with CBEC directives, and alignment with previous tribunal judgments to support the appellant's entitlement to the refund of the special additional duty amount.