TMI Blog2024 (5) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise, Madras V/s Addison Company Ltd. [ 2016 (8) TMI 1071 - SUPREME COURT] is not in respect of the case where the refund of SAD has been claimed in terms of the Notification No.102/2007 which provides for the refund subject to fulfillment of this condition. In such cases payment of VAT is the only condition for refund to the dealer who has paid the SAD at the rate of 4% and that burden of the same has not been passed on to the buyer is certified by the independent chartered accountant. Appeal filed by the Revenue is dismissed. - MR. DILIP GUPTA, PRESIDENT MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri A.K. Choudhary, Authorised Representative for the Appellant None, for the Respondent ORDER This appeal filed by the revenue is directed against the Order-in-Appeal No.NOI-CUSTM-000-APP-125-128-18-19 dated 28/06/2018 passed by Commissioner (Appeals) Customs Central Taxes, Noida. By the impugned order, the appeal filed by the revenue has been rejected holding as follows:- 4.13. Considering overall facts of the case, the ratio in the judicial pronouncements, supra, the statutory provisions for sanction of refund of additional duty of customs as contained in Notification No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , paid on such duty, paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the fund . Further, proviso (2) to said Section 27 ibid, provides that the amount of duty and interest, if any, paid on such duty as determined by the Assistant Commissioner of Customs or Deputy Commissioner of Customs under the foregoing provisions of this sub section shall, instead of being credited to the fund, be paid to the applicant, if such amount is relatable to- the duty and interest, if any, paid on such duty paid by the importer, or the exporter, as the case may be, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person. 3. In the case of Commissioner Of Central Excise, Madras Vs Addison Co, Ltd., 2016 (339) E.L.T. 177 (S.C.), the Additional Solicitor General of India submitted to the Hon'ble Supreme Court of India that the Act had given effect to the recommendations of the Public Accounts Committee whereby the refund of any duty was proposed to be made only to the person who ultimately bears the incidence of such duty. He also submitted that it would be necessary for a ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 12D. The apex court thus set aside the High Court order for grant of refund on the ground of unjust enrichment. The statutory provisions regarding unjust enrichment are similar if not identical in the Central Excise Act, 1944 and the Customs Act, 1962. The ratio of the said Supreme Court judgement as discussed in preceding paragraphs is squarely applicable to the present applicant for grant of refund of Special Additional Duty of Customs under Customs Act, 1962 and the impugned order. In this case, the refund sanctioning authority that passed the order did not invoke the provisions of Section 27 (1A) of the Customs Act, 1962. 6. From the discussion in the on-going para, it is amply clear that the refund of SAD can be granted to the applicant only when it is established that the incidence of Customs duty has not been. passed on to any other person and also the refund can be granted only to the person who has actually born the incidence of duty. In the impugned OIA, the appellate authority has failed to appreciate the contention of revenue that the importer has failed to establish that the burden of SAD has not been passed on to the buyer of the goods. 3.1 We have heard Shri Mani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing himself that the conditions referred to in para 2 above, are fulfilled. 4.3 By Circular No 16/2008-Cus dated 13.10.2008, Board has clarified in respect of the manner for satisfaction of the requirement of unjust enrichment, in case of refunds under this notification stating as follows:- Subject: Clarification on refund of 4% Additional Duty of Customs (4% CVD) in pursuance of Notification No.102/2007-Customs dated 14.09.2007 - regarding. (vii) Unjust enrichment and its Certification by Chartered Accountants: It is represented by the trade that for the purpose of satisfying the condition that burden of 4% CVD has not been passed on by the importer to any other person, a certification from an independent Chartered Accountant may be accepted by the Customs authorities. In this regard, it is stated that the intention of the Government is not to allow the importer to recover 4% CVD from the buyer and to claim the refund from Customs as well. The only method to ensure this is to make it conditional to satisfy the principle of unjust enrichment. In this regard, in the earlier circular, it has been provided that the importer may produce a certificate from the statutory auditor/CA who c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e importer, correlating the payment of ST/VAT on the imported goods (in respect of which refund is claimed) with the sales invoice is submitted? Yes a certificate dated Nil submitted by Rajiv Prakash Co., CAS [M.No.082378] for correlating the payment of ST/VAT. 9 Whether a certificate from statutory auditor/ Chartered Accountant, who certifies the annual accounts of the importer, that the burden of 4% Additional Duty of Customs has not been passed on by importer to the buyer to fulfill the requirement of unjust enrichment explaining how the burden of same has not been passed on by the importer, is submitted? Yes a certificate dated Nil explaining the grounds for not passing the burden of 4%/2% Additional Duty by the importer submitted. 4.5 Thus we find that adjudicating authority has while sanctioning the refund have followed the guidelines issued by board in this regard. The issue has been settled by the decision of this Tribunal referred in the order of the Commissioner reproduced below:- 4.13. l observe that the impugned appeals praying rejection of the refund on the ground of unjust enrichment is inherently wrong and contrary to the law laid down by the Hon'ble Courts and T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n production of audited balance sheet and profit and loss account - Denial of refund on ground that refund amount was shown as expenses in assessee's profit und loss account and hence the burden must have been passed on to customers without any corroborative evidence untenable in law Discarding certificate of Chartered Accountant, who was also assessee's statutory Auditor, by Commissioner (Appeals) and observation that assessee had failed to prove that incidence of duty claimed as refund had not been passed on to customers, incorrect - Assessee entitled to refund - Section 27 of Customs Act. 1962. 4.6 In case of Systronics (India) Ltd [2019 (370) ELT 945 (Tri. - Bang.)] following was held: 6 . After considering the submissions of both the parties and perusal of the material on record, I find that the only ground on which the SAD refund has been rejected is that the amount of refund has not been shown in the receivables in the accounts of the appellant. Further I find that as per the Notification No. 102/2007 and also the subsequent Circular No. 18/2010, dated 8-7-2010, it is not the requirement at all that the said claim should be shown as receivables in the books of accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the Chartered Accountant as discussed above clearly shows that appellants have not collected SAD directly or indirectly. Since the certificate has been produced by the statutory auditor it cannot be said that they were unaware of the records maintained by the appellant. For considering the accounting principles, the ld. Commissioner has explained that the instructions issued by the Board that the certificate of Chartered Accountant can be accepted is applicable only for the current financial year and for the earlier period, he was required to go into accounting method. I am unable to appreciate this logic. The Board itself says that 4% exemption is operated through a refund mechanism wherein the importer would pay the SAD at first and claim refund after showing the Government that he has paid VAT. Therefore the exemption is available if the importer is able to show that he has paid 4% SAD (CVD) and subsequently the same goods has been sold in the domestic market and sales tax/VAT for which has been paid. The Notification requires only these aspects to be proved by the documents. Further in view of the provisions of Section 11B, the Board has prescribed that the unjust en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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