TaxTMI 
TaxTMI 
2013 (3) TMI 214
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....Customs (4% SAD) paid by them at the time of import of different models of Air-conditioners, in terms of exemption Notification No. 102/2007-Cus., dated 14-9-2007. On scrutiny of the refund claim, it was noticed that sales of the imported goods i.e. Air conditioner had been made in several different States and the appellant failed to fulfil certain mandatory conditions as envisaged under Notification No. 102/2007-Cus., dated 14-9-2007 to avail the benefit of the said notification. The appellant, while filing the refund claim, had not submitted the required documents like the acknowledgement of VAT returns, copies of VAT challans or ST/VAT documents evidencing payment thereof, sales invoices, and copy of receivable account to substantiate the claim of unjust enrichment. Based on the above noted deficiency, show cause notice F. No. VIII/20-05/Refund/ICD/2009, dated 3-6-2009 was issued calling upon them to show cause as to why the benefit of exemption notification ibid should not be disallowed and consequently the refund claim should not be rejected. After following due process of law the said show cause notice was adjudicated vide impugned order, wherein the adjudicating authority re....
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.... judgment of the Tribunal in the case of STP Ltd. v. CCE (Import), Mumbai as reported at 2011 (267) E.L.T. 110 (Tri.-Mumbai) will squarely cover the issue in their favour. 6. Ld. DR on the other hand would submit that the appellant herein had accounted for the said payment of 4% CVD in their balance sheet/P & L accounts as expenses and subsequently reversed the same to indicate that they had not passed on the amount to their purchasers. He would submit that the findings of the lower authorities are very clear as to this aspect. 7. I have carefully considered the submissions made by both sides and perused the records. 8. On perusal of the records, I find that the issue involved in this case is regarding the refund and Special Additional Duty on the goods imported for subsequent sale, as provided under Notification No. 102/2007-Cus., dated 14-9-2007. 9. Undisputed facts are that the appellant had imported various items and paid special i.e. Special Additional Duty. It is also undisputed that the appellant had subsequently sold the said imported goods and claimed the refund of Special Additional Duty under Notification No. 102/2007-Cus. It is also undisputed th....
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....e Tax Act, 1961, in order to fulfil the condition that the incidence of duty burden has not been passed on by the importer to any other person for the purpose of refund of 4% CVD. A certificate by any other independent Chartered Accountant would not be acceptable for this purpose." 12. It is seen from the above reproduced clarification that in 2008 itself, C.B.E. & C. had clearly stated that in order to fulfil the requirement of the condition that the incidence of duty burden has not been passed on by the importer to any other person for the purpose of refund of 4% CVD certificate given by their statutory auditor should be enough. It can be seen from the abovesaid reproduced clarification that C.B.E. & C. has clearly stated that lower authorities shall accept the certificate given by statutory auditors. I find that in this case, the appellant had produced a statutory auditors' certificate as has been stated by the ld. counsel which I may reproduce : ANNEXURE - 2 N.M. RAIJI & CO. Chartered Accountants. Universal Insurance Building, Pherozeshah Mehta Road, Mumbai-400 001. INDIA Telephone : 2287 0068 2287 3463 2283 7482 Telefax : 91 (22) 2282 8646 91 (22) 2265 0578 ....
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....ed Balance Sheet and Profit and Loss Account have to be examined in respect of the current financial year for scrutiny of unjust enrichment aspect. It is stated that a large number of refund claims relating to the current year were held up for want of such verification. In this regard, the issue has been examined by the Board and it has been decided that the field formations shall accept a certificate from Chartered Accountant for the purpose of satisfying the condition that the burden of 4% CVD has not been passed on by the importer to any other person. Further, the importer shall also make a self-declaration along with the refund claim to the effect that he has not passed on the incidence of 4% CVD to any other person. Hence, there is no need for insisting on production of audited Balance Sheet and Profit and Loss Account in these cases. It may also be noted that recently the Board has also notified the list of documents required to be filed by the applicant along with the refund claim (Annexure-II) which is also displayed in the departmental website. Hence, other than these aforesaid documents, no other document would be required in the normal course of granting 4% CVD refund." ....