Whether CA Certificate stating no unjust enrichment suffice for granting refund of SAD?

PJ/Case Law/2013-14/1700

Case:-M.B.ENTERPRISES VERSUS COMMISSIOENR OF CENTRAL EXCISE, AHEMDABAD

Citation:-2013(292)E.L.T. 451(Tri.-Ahmd.)

Brief Facts:-The facts in brief are that the appellant had filed refund claim of additional duty of customs (4% SAD) amounting to Rs. 3,67,634/-,paid on the imported goods in terms of exemption Notification No. 102/2007-Cus., dated 14-9-2007. After examining/scrutinizing the documents submitted by the appellant along with subject refund claim, the adjudicating authority, vide impugned Order-in-Original sanctioned the refund claim amounting to Rs. 3,67,634/- (Rupees Three Lakhs Sixty Seven Thousand Six Hundred Thirty Four only) but the amount of the refund was ordered to be credited to the Consumer Welfare Fundestablished under Section 12C of the Central Excise Act, 1944 on the ground that claim was hit by unjust enrichment.

Appellant contentions:-The appellant filed an appeal and the learned Commissioner
(Appeal) allowed the refund claim for the year 2008-09 but rejected the appeal in respect of refund relating to the year 2007-08 on the ground that the appellant had booked the expenditure towards SAD as ‘expense’ and subsequent revision and account of payment of income-tax thereon and the certificate issued by the Chartered Accountant refund is acceptable.

The learned counsel submits that the issue is squarely covered by the decision of the Tribunal in the case of Shrinathji Dyg. v. C.C.E., Surat - 2010 (262) E.L.T. 622 (Tri.-Ahd.) = 2011 (24) S.T.R. 108 (Tri.-Ahd.) wherein it was held that if the duty element had not been shown separately in the invoice and recovered from the customers and the importer produces the C.A. certificate, it is sufficient for fulfilment of conditions of Notification No. 102/2007-Cus., dated 14-9-2007
Reasoning of Judgment:-We have considered the submission from both parties and perused the record, we find that in this case, it is not only the case of the appellant that the SAD was not separately collected from the customers but it was also submitted that Commissioner (Appeals) was wrong in holding that expenditure was booked since subsequently the accounts were revised, income-tax was paid for the profit and revised return was filed. Therefore the present issue is definitely covered by the decision cited above. The learned AR fairly admitted that he has not found a decision contrary to the one cited by learned counsel.

Further, as regards the principles of unjust enrichment is concerned, it is found that the Board has clarified vide Circular No. 6/2008-Customs dated 28-4-2008 that a certificate issued by the statutory auditor/Chartered Accountant who certifies the annual account of the importer certifying that the incidence of duty has not been passed on by the importer to the buyer would suffice for the purpose of refund of such duty.

In view of the above, the appeal is allowed with consequential benefit to the appellant.
Decision:-Appeal allowed.

Comment:-The crux of this case is that the certificate issued by the Chartered Accountant that incidence of duty has not been passed on by the importer to the buyer is sufficient for granting refund of SAD, which is otherwise admissible to the assessee.

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PJ/Case Law/2013-14/1700

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