2013 (8) TMI 165 - AT - Customs

Tribunal upholds refund eligibility based on Chartered Accountant's certificate. Criticizes inconsistent refund claim processing.

The Tribunal upheld the Commissioner (Appeals)'s decision, ruling that the appellant was eligible for a refund of Special Additional Duty (SAD) based on ... Refund of 4% of Special Additional Duty (ADC/SAD) - assessee filed refund in terms of Notification No.102/2007 – department rejected the claim on the ground that assessee failed to prove that they had not passed on the incidence of duty to the customers or any other person and also they have not furnished the required documents in relation to refund claims – Commissioner (Appeals) passed order in favour of assessee – revenue filed the appeal - Held that:- CA’s certificate produced by the appellant fulfills the requirements and is sufficient to come to the conclusion that appellants are eligible for the refund - the very purpose of requiring a certificate to be produced by a professional CA and insisting on the fact that the Chartered Accountant should be one who was responsible for auditing the companies accounts either statutorily was to ensure that the CA was familiar with the accounts of the company - their practices and also would be knowing and would be in a position to verify the accounts and such certificates shall be accepted – decided against revenue. Issues Involved:1. Eligibility for refund of Special Additional Duty (SAD) under Notification No.102/2007-Cus.2. Requirement and sufficiency of Chartered Accountant's (CA) certificate to prove non-passing of duty incidence (unjust enrichment).3. Consistency in application of refund claims across different Commissionerates.Detailed Analysis:1. Eligibility for Refund of Special Additional Duty (SAD) under Notification No.102/2007-Cus:M/s. Apple India Pvt. Ltd. filed a refund claim for Rs.5,22,27,424/- under Notification No.102/2007-Cus., as amended by Notification No.193/2008-Cus. The adjudicating authority rejected the claim on the grounds of failure to prove non-passing of duty incidence and lack of required documents. The Commissioner of Customs (Appeals) overturned this decision, holding that the claimants were eligible for the refund based on the CA's certificate. The Revenue appealed against this decision, arguing that the appellants did not produce a CA's certificate explaining how unjust enrichment was not attracted.2. Requirement and Sufficiency of Chartered Accountant's (CA) Certificate to Prove Non-Passing of Duty Incidence (Unjust Enrichment):The Revenue contended that the CA's certificate did not adequately explain the non-passing of duty incidence. The respondents argued that the CA's certificate clearly demonstrated that the liability had not been passed on and that the requirement for such a certificate was beyond the terms of the Notification, introduced by the Board. The Tribunal noted that Notification No.102/2007 provides exemption from SAD for goods imported for subsequent sale when VAT/Sales Tax is paid. The Tribunal acknowledged that all conditions of the Notification were met except for the unjust enrichment aspect, which was prescribed by the Board.The Tribunal examined the CA's certificate, which stated that the burden of 4% ACD had not been passed on to the buyer, either directly or indirectly, and that the sales price of the traded goods was determined by competitive market conditions, not cost-based formulas. The Tribunal found no specific observations from the Revenue on why the CA's certificate or the worksheet could not be accepted. The Tribunal emphasized that the Board's circulars allowed for a CA's certificate to fulfill the requirement of proving non-passing of duty incidence.3. Consistency in Application of Refund Claims Across Different Commissionerates:The respondents highlighted that refund claims were held up only in Bangalore, while other Commissionerates allowed refunds based on similar CA's certificates. The Tribunal noted that several orders had been passed by different officers of the department sanctioning refunds for the same appellant, and the same CA's certificates were accepted in those cases. The Tribunal criticized the inconsistency in the application of refund claims and stressed the need for uniformity.Conclusion:The Tribunal concluded that the CA's certificate produced by the appellant was sufficient to prove that the burden of SAD had not been passed on, fulfilling the requirements of the Notification and the Board's circulars. The Tribunal upheld the order of the Commissioner (Appeals) and directed the lower authority to settle the pending refund claims within six months, considering the volume of transactions and the number of claims.Operative Portion:The Tribunal pronounced the operative portion of the order in open court, affirming the eligibility for the refund and directing timely settlement of pending claims.