Whether CA certificate sufficient to prove that there is no unjust enrichment?

PJ/CASE LAW/2014-15/2453

Case:- KHETALAL RATANSI PATEL VERSUS COMMISSIONER OF CENTRAL EXCISE, NAGPUR

Citation:- 2014 (308) E.L.T. 689 (Tri. - Mumbai)

Brief facts:- The appellants filed these appeals against the impugned orders passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) upheld the adjudication orders rejecting the refund claim filed by the appellants.
The brief facts of the case are that the appellants made import of teak round logs and paid appropriate duty including 4% special additional duty of customs. Subsequently the appellants sold the goods to different buyers on payment of appropriate VAT. Thereafter the appellant filed a refund claim in view of the provisions of Notification No. 102/2007-Cus., dated 14-9-2007. The adjudicating authority allowed the refund claim, however credited the amounts to the Consumer Welfare Fund on the ground that the appellant failed to show that burden of duty has not been passed on. The adjudication is upheld by the Commissioner (Appeals).

Appellant’s contention:- The learned counsel submitted that the appellant had fulfilled all the conditions of the Notification and the goods were cleared under the invoices where specifically it has been mentioned that no credit of additional duty of customs is available. The appellant also submitted that the Board has clarified vide Circular No. 16/2008-Cus., dated 13-10-2008 that a certificate by the Chartered Accountant is required to show that incidence of duty burden has not been passed on by the importer to any other person for the purpose of refund of 4% CVD. The appellant produced necessary C.A. certificate along with cost sheet hence the impugned orders are not sustainable.

Respondent’s contention:- The Revenue relied upon the findings of the lower authority and submitted that the appellant failed to show that burden of duty has not been passed on hence the refund claim was rightly rejected.

Reasoning of judgment:- In the present case, the refund claim is filed under the provisions of Notification 102/2007-Cus., dated 14-9-2007. For ready reference, the provisions of the Notification are reproduced below:-
“Exemption from special CVD to all goods imported for subsequent sale when VAT/Sales Tax paid by importer. - In exercise of the powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the goods falling within the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India for subsequent sale, from the whole of the additional duty of customs leviable thereon under sub-section (5) of Section 3 of the said Customs Tariff Act (hereinafter referred to as the said additional duty).
2. The exemption contained in this notification shall be given effect if the following conditions are fulfilled :
(a)    the importer of the said goods shall pay all duties, including the said additional duty of customs leviable thereon, as applicable, at the time of importation of the goods;
(b)    the importer, while issuing the invoice for sale of the said goods, shall specifically indicate in the invoice that in respect of the goods covered therein, no credit of the additional duty of customs levied under sub-section (5) of Section 3 of the Customs Tariff Act, 1975 shall be admissible;
(c)    the importer shall file a claim for refund of the said additional duty of customs paid on the imported goods with the jurisdictional customs officer before the expiry of one year from the date of payment of the said additional duty of customs;
(d)    the importer shall pay on sale of the said goods, appropriate sales tax or value added tax, as the case may be;
(e)    the importer shall, inter alia, provide copies of the following documents along with 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.”
The refund claim is rejected on the ground that the appellant failed to show that burden of duty has not been passed on. The appellant produced necessary C.A. certificate along with cost sheet as required under Circular No. 16/2008-Cus., dated 13-10-2008. The appellant has also specifically written on the invoices under which the goods were sold, that the credit of additional duty of customs is not available. The C.A. certificate specifically shows that the amount of refund is shown in the account books as amount due as a refund of additional customs duty. In view of this, the Hon’ble Court found merit in the contention of the appellant. The impugned orders are set aside and the appeals are allowed.

Decision:- Appeal allowed.

Comment:-The analogy of the case is that as the assessee had produced the necessary C.A. certificate along with the cost sheet as required under the clarificatory C.B.E. & C. Circular No. 16/2008-Cus., dated 13-10-2008 and the C.A. certificate showed that amount of SAD refund was shown in account books as ‘amount due’ as a refund of Additional Customs Duty, the bar of unjust enrichment was not applicable. Moreover, the assessee has also specified in invoices that the credit of additional duty of customs in not available. Therefore, when all the conditions have been satisfied, the refund of SAD was allowed.

Prepared by:- Monika Tak

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PJ/CASE LAW/2014-15/2453

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