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TMI Blog2024 (3) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... on? - HELD THAT:- In the present case, only objection made by the adjudication authority to reject the refund application is that the Appellant failed to show the due amount of refund as receivable in the books of account and it amounts to non-compliance of the Notification. In impugned order it is further held that the onus of unjust enrichment also not complied. The issue was considered by various authorities and this Tribunal from time to time as stated in ibid paragraphs and it is well settled that once the Appellant produced certificate from concerned Chartered Accountant, it is sufficient to meet the requirement of unjust enrichment and compliance of the conditions of Notification. The Department have no case that the goods were sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Notification No. 102/2007-Cus dated 14.09.2007 and also not discharged the onus of unjust enrichment. Aggrieved by said order, present appeal is filed. 2. When the appeal came up for hearing, Ld counsel for the Appellant submits that the Appellant had imported goods for trading and not an assessee registered under Central Excise law. Hence, they don t issue any CENVAT invoices to the customers. As per the Order-in-Original, no specific reason given regarding non- compliance with the mandatory condition of Notification No. 102/2007-Cus dated 14.09.2007 and in Appeal, in addition to the above, Commissioner (Appeals) further held that the Appellant failed to prove onus of unjust enrichment. The Ld Counsel draw our attention to the report o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 (Tri. Ahmd.) ix. Commissioner of Customs, Bangalore Vs M/s Apple India Pvt Ltd (2014 (301) E.L.T 675 (Tri. Bang) x. Commissioner of Customs, Bangalore Vs M/s Apple India Pvt Ltd (2014 (309) E.L.T 29 (Kar) xi. Commissioner of Customs, Bangalore Vs M/s Apple India Pvt Ltd (2015 (320) E.L.T A277 (SC) xii. M/s Chowgule Company Pvt Ltd Vs Commissioner of Customs (E.Ex (2014 (306) E.L.T 326 (Tri.LB) Mumbai). xiii. Commissioner of Customs ST Bangalore Vs M/s Schneider Electric IT Business (2018 (361) E.L.T 607 (Kar) xiv. M/s Equinox Solutions Ltd Vs Commissioner of Customs (Import)- Mumbai (2011 (272) E.L.T 310 (Tri.Bom) 3. Ld. Counsel for the Appellant further draw our attention to paragraph 6.2 of the Circular No. 6/2008-Cus dated 28.04.2008 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of refund claims relating to the current year were held up for want of such verification. 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. Further, 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. It may also be noted that recently the Board has also notified the list of doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. Therefore, it is clear that it is rebuttable presumption. To rebut such presumption, the assessee has produced auditor report required to claim the refund of special additional duty. The auditor has unequivocally stated in his report that the burden has not been passed on directly or indirectly and in coming to such conclusion, they have taken into account how the price of the traded goods has been arrived for this purpose. Therefore, such presumption stands rebutted. 7. Aggrieved by said order, Respondent filed Appeal before Hon ble Supreme Court and it is dismissed by Hon ble Supreme Court ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reject the refund application. In the present case, deficiency memo was issued to the Appellant in time and they have failed to comply with the deficiency memo. Hence impugned order is legally sustainable. 10. We have gone through the submissions made by both sides. In the present case, only objection made by the adjudication authority to reject the refund application is that the Appellant failed to show the due amount of refund as receivable in the books of account and it amounts to non-compliance of the Notification. In impugned order it is further held that the onus of unjust enrichment also not complied. The issue was considered by various authorities and this Tribunal from time to time as stated in ibid paragraphs and it is well settl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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