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TMI Blog2024 (5) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... ued by board in this regard. As the issue is settled in favour of the respondent by various decisions of the Tribunal we do not find any merit in this appeal. However, before closing we would like to point out the decision in case of Commissioner of 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 fulfilment 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. Appeals filed by the Revenue are dismissed. - HON BLE MR. P. K. CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri Manish Raj , Authorized Representative for the Appellant Absent for the Respondent ORDER SANJIV SRIVASTAVA : These appeals filed by the revenue are directed against the Order-In-Appeal No NOI-CUSTM-000-APP-110-116-2018-19 dtd 28/06/2018 of the Commissioner (Appeals) Customs Central Tax, No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner (Appeals) in his OIA has not addressed these specific issues. It is in fact a presumptuous disposal of Revenue's appeal. 2. The Sub Section (2) of Section 27 of Customs Act, 1962 stipulates that If, on receipt of such application (application of refund filed under Sub section (1) of the ibid), the Assistant Commissioner of Customs or Deputy Commissioner of Customs is satisfied that the whole or any part of the duty and interest, if any, 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 cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difficult to identify who had actually borne the burden but such verification would definitely assist the Revenue in finding out whether the manufacturer or buyer who makes an application for refund are being unjustly enriched. If it is not possible to identify the person/persons who have borne the duty, the amount of excise duty collected in excess will remain in the fund which will be utilized for the benefit of the consumers as provided in Section 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the following documents alongwith 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. 3. The jurisdictional customs officer shall sanction the refund on satisfying 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 acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall not be hit by the principles of unjust enrichment. While sanctioning the refund claims original authority has in each of the order observed as follows (Refer order in original No 595/Refund/ICD-Loni/2017-18 dated 15.09.2017) : S. No Conditions as per Not No 102/2007- Cus dated 14.09.2007 Whether fulfilment by the party or not? Y/N 8 Whether a certificate from statutory auditor/ Chartered Accountant, who certifies the annual accounts of the 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, Jain Arushi associates (M No 533257) 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 of Jain Arushi associates explaining the grounds for not passing the burden of 2/4% SAD by the importer submitted. 4.5 Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missible. (iii) Equinox Solution Ltd v CC Ahmedabad-2017 (357) ELT 1041(Tri Ahmd): Refund of Special Additional Duty (SAD) Unjust enrichment Proof Chartered Accountant's certificate-CBE C Circular Nos. 6/2008-Cus., dated 28-4-2008 and 18/2010- Cus, dated 8-7-2010 clarifying that certificate from Chartered Accountant who was statutory auditor of claimant company would suffice to satisfy unjust enrichment and there was no need for insisting on production of oudited 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reach the conclusion that the certificate produced by the appellant is not sufficient to rebut the presumption that the incidence of duty has been passed on. The Circular issued by the Board clearly shows that Chartered Accountant s certificate is sufficient if it explains how the burden has not been passed on. On going through the sample invoices produced before me, I find that the invoice shows only VAT and not SAD. Further the certificate 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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