Refund of SAD under Notification No. 102/2007-Cus

PJ/Case Laws/2011-12/1511

Case: M/S GUJRAT BORON DERIVATIVES PVT. LTD, HALOL versus COMMISSIONER OF CUSTOM, AHEMDABAD

Citation: 2012-TOIL-52-CESTAT-AHM

Issue:- Refund of Additional duty u/Notification No. 102/07-Cus – Certificate for unjust enrichment issued by statutory auditor submitted – refund not deniable as Statutory Auditor aware of Assessee’s records.

Brief Facts:- In this case, the refund claim sanctioned by the original adjudicating authority and appeal filed by the revenue, the impugned order was set aside resulting in demand of for the refund amount sanctioned. Central board of excise and custom issued an instruction vide circular No. 18/10-Cus dated 8/10/2010 wherein the board has stated that there is no need to look into the balance sheet and P&L. The claimant has submitted the chartered accountant’s certificate certifying that the burden of SAD (4%) has not been passed by the importer to the customers to fulfill the requirement of unjust enrichment. The commissioner has reproduced the certificate issued by CA wherein the CA has certified that said amount was not recovered directly or indirectly from the customers; No CENVAT has been taken and no unjust enrichment had been derived by claiming refund.

The appellant is seeking modification of stay order passed by this tribunal vide which the assessee was required to deposit specific amount each demand.

Appellants Contention:- The appellant submitted that on the very same issue for a subsequent period the tribunal has held that the refund claim is not hit by provision relating to unjust enrichment. The appellant further submits that in view of the fact that the issue has been decided finally in favour of appellant on the same issue for a different period, the requirement of pre-deposit for consideration of appeal may be waived and stay may be modified.

Respondents Contention:- The respondent while admitting the issue submits that the requirements of pre-deposit already ordered need not be modified since in this case since in the case which was before the tribunal in appeal No. C/23/2011 in respect of which order was passed on 22/09/2011 did not require pre-deposit to be made since refund had not been sanction in that case. He submits that the appellant may be required to make the deposit and thereafter the matter may be heard.

Reasoning of Judgment:- The Tribunal noted that circular of 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 court, the court found that the invoice shows only VAT and not SAD. Further the certificate issued by Chartered Accountant clearly shows that appellant has not collected SAD directly or indirectly. Since the certificate has been issued by statuary auditor it cannot be said that they were unaware of the principals. 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 domestic market and sales tax and VAT for which has been paid. The notification requires only these aspects to be proved by documents. Further in view of the provision of section 11(B),the board has prescribed that the unjust enrichment is required to be examined and for this purpose the chartered accountant should be produced.

The application for modification of stay application are allowed, per deposit is waived and application themselves is allowed with consequential relief to the appellant.

Decision:- Appeal allowed with consequential relief.

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PJ/Case Laws/2011-12/1511

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