TaxTMI 
TaxTMI 
2025 (11) TMI 711
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....the case, the Hon'ble CESTAT has erred in not appreciating the fact, that the CA Certificate submitted by the assessee fails to prove that the burden of duty has not been passed on to any other person as rightly brought out in the Order-In-Original's and Order-In-Appeals? 2. Whether on the facts and in the circumstances of the case, the Hon'ble CESTAT has erred in Interpretation of law, since it has not taken into consideration the claimant's own submission and inability to provide ledger abstracts/balance sheet to substantiate accounting of the claimed amount? 3. Whether on the facts and in the circumstances of the case, the Hon'ble CESTAT has erred in not appreciating the law, that in the facts of the present case there has been significant procedural irregularities, by undermining the importance of para 2(b) of Notification No. 102/2007 dated 14.09.2007." Brief facts: 4. The respondent-assessee is engaged in the import of goods and sales thereof. The goods imported were cleared by paying 4% Special Additional Duty (SAD). On the sale of imported goods, the respondent applied for a refund of 4% SAD paid. The adjudicating authority reject....
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....vt. Ltd. (supra) is not applicable to the case at hand. 8. Per contra, Sri B.G. Chidananda Urs, learned counsel appearing for the respondent-assessee, submits that Section 28D of the Act imposes a presumption of passing the duty burden to the customers. However, the presumption is rebuttable. The statutory presumption is rebutted by producing the Chartered Accountant certificate, certifying that the burden of duty is not passed on to the customers. Learned counsel further submits that Notification No. 102/2007-Cus, dated 14.09.2007, provides for a certificate from the statutory auditor/Chartered Accountant who has certified the Annual Accounts of the importer, that the burden of 4% SAD has not been passed on by the importer to the buyer, would fulfill the requirement of unjust enrichment. The circular was further modified in Circular No. 16/2008-Cus, dated 13.10.2008, and Circular No.18/2010-Cus, dated 08.07.2010. Learned counsel submits that in all these circulars, the certificate of a Chartered Accountant is prescribed as sufficient compliance to rebut the presumption and is entitled to a refund of 4% SAD. 9. It is submitted that the prescribed authority cannot expect or in....
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....ction of refund under this notification. However, considering the voluminous transactions and the documents involved in the cycle, from import to sale, it was felt that it would be expedient to allow the importer to submit a certificate from the statutory auditor/Chartered Accountant who certifies the annual accounts of the importer, that the burden of 4% CVD has not been passed on by the importer to the buyer and to fulfill the requirement of unjust enrichment. 6.2 In view of the above, it is clarified that the doctrine of unjust enrichment will apply to 4% CVD refunds Scheme under the said exemption notification issued in terms of Section 25(1) of the Customs Act, 1962. However, importers may produce a certificate from the statutory auditor/Chartered Accountant who certifies the importer's annual financial accounts under the Companies Act or any statute, explaining how the burden of 4% CVD has not been passed on by the importer and to fulfill the requirement of unjust enrichment. In addition to the aforesaid 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....
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....2010, reads as follows: "6. Some field formations have also raised certain doubts whether the audited 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 thes....