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TMI Blog2013 (8) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... prove that they had not passed on the incidence of duty to the customers or any other person and also they have not furnished the required documents in relation to refund claims. Aggrieved by the order-in-original No.382/2009 (DC, Refunds) dated 27.11.2009 of the lower authority, the claimant preferred appeal No.126/2010 Cus. (B) before the Commissioner of Customs (Appeals), Bangalore on the ground that they had furnished all the required documents relating to the refund claims and also furnished the Chartered Accountant's (CA's) certificate as per the conditions laid down in the referred notifications/circulars in order to fulfill the test of unjust enrichment; that the CA's certificate is valid and admissible evidence. The Commissioner of Customs (Appeals), Bangalore has set aside the said order-in-original holding that the claimants are eligible for refund of the ACD/SAD and the same could be granted on the basis of the CA's certificate. Aggrieved by this order, Revenue is in appeal. 2. The learned AR submits that the Commissioner (A) has erred in allowing the appeal without considering the fact that the appellants did not produce CA's certificate which is explaining how the u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... importer shall pay on sale of the said goods, appropriate sales tax or value added tax, as the case may be; e) the importer shall, inter alia, provide copies of the following documents along with the refund claim: i. document evidencing payment of the said additional duty; ii. invoices of sale of the imported goods in respect of which refund of the said additional duty is claimed; iii. documents evidencing payment of appropriate sales tax or value added tax, as the case may be, by the importer, on sale of such imported goods. 5. After hearing both the sides, there is no dispute that all the conditions in terms of the Notification have been fulfilled excepting the unjust enrichment aspect which has been as submitted by the learned counsel, prescribed by the Board. 6. Even though the learned counsel argued that there is no need to prove unjust enrichment at all, he did not press the argument. Therefore, we do not propose to discuss this issue at this stage. 7. In fact, when we go through the relevant paragraph in the appeal memorandum where the main ground has been put forth, the introduction given by the Revenue clearly explain what should be the approach of the department i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 75 has been paid and the refund under Notification No.102/2007 dated September 14, 2007 as amended, is sought by M/s. Apple India Private Limited having its registered office at 19th Floor, Concorde Towers, UB City, Bangalore 560 001 and having Import Export Code 0796001839, hereinafter referred to as the importer. 1. It is certified that we are the Chartered Accountants, who audit the VAT returns under the VAT laws of the importer. 2. The following records (including but not limited to), documents and books of accounts were made available to us for verification by the importer for the purpose of our examination and verified by us: * List of imports of traded goods made from July 2008 to September 2008. * Import invoices, Bills of Entry and TR-6 Challans for duty payment. * Sales register and sales invoices. * Sales tax deposits challans. 3. On the basis of our examination so carried out and on the basis of the information and explanation given to us, we state that: * The company has paid sales tax/VAT aggregating to Rs.33,941,877 on sales of traded goods imported against the bill of entries for Bangalore location, details of which have been listed below: Sl. No. Period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders have been passed by the officers of the department sanctioning refund in respect of the same appellant. In some of these cases, the very same Chartered Accountants have given the certificates and department has not even taken care to check whether those certificates are different from the present one. When the same appellant is able to get refund on the basis of very same facts, very same certificates and on the very same goods, it is not understandable how this particular case alone has been selected for special treatment. While memorandum as reproduced about sets out what should be the approach, in the very same paragraphs negates its own observation when no defects are pointed out in the worksheet/CA certificate turning observations into empty rhetoric. It is also necessary to consider the Boards circular issued in this regard. Two circulars have been issued by the Board. The first one is No.6/2008 dated 28.4.2008 and the second one is No.16/2008-Cus. dated 13.10.2008. Both these circulars have specific paragraphs devoted to unjust enrichment and how the unjust enrichment angle is required to be dealt with by the importers. In the circular issued on 28.4.2008, the Board ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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