Refund - Customs

Refund - Certificate issued by the Chartered Accountant alone not sufficient to prove UJE – s.27 and s.28 C and s.28 D of the Customs Act, 1962 to be complied with. Full Text

2. The revenue has filed the appeal by raising the following substantial question of law:

"Whether Chartered Accountant's Certificate alone can be accepted as an evidence to rule out unjust enrichment without any corroborative evidences such as balance sheet, ledger accounts, sales invoices prior to after import etc. or not?"

7. Section 27 of the Customs Act 1962 provides for the claim for refund of duty. A perusal of the said provision would show that the importer will have to satisfy the authorities while seeking such a claim. In other words, until and unless the importer satisfies the authorities with relevant documents, indicating the fact that it has paid the excess amount and the duty has not been passed on to the customers, such a claim cannot be accepted. Further Section 28 C and D of the Act provide for price of goods to indicate the amount of duty paid there on and presumption that incidence of duty has been passed on to the buyer. Therefore, until the contrary is proved, there is a presumption provided under the statute that the duty has been passed on to the buyer. The above said provisions would clearly establish the fact that it is for the importer to satisfy the authorities that the duty has not been passed on to the buyer and the excess payment had been made by him by absorbing the same.

8. In the present case on hand, admittedly, the first respondent has not produced any document other than the certificate issued by the Chartered Accountant to substantiate its case. The certificate issued by the Chartered Accountant is merely a piece of evidence acknowledging certain facts. The authorities cannot merely act upon the certificate. If such an interpretation is given, then there is no need for authorities to decide the issue of refund. In other words, the certificate issued by the Chartered Accountant would prevail over the consideration of the issues before the authorities. Such a situation has not been contemplated under the Act. Further, Section 27 mandates on the importer to produce such documents or other evidence while seeking refund to establish that the amount of duty in relation to which such refund is claimed, has not been passed on by him to any other person.

9. Therefore, considering the above said provisions and applying the same to the facts on hand, we are of the opinion that the Tribunal has committed an error in merely relying upon the certificate produced by the first respondent without taking into consideration of the fact that no evidence has been produced for considering the claim of refund. The Tribunal also relied upon the Judgement of Commissioner of C.Ex., Coimbatore Vs. Flow Tech Power reported in (2006(202)E.L.T.404(Mad). The said Judgement is not applicable to the present case on hand and the Tribunal has wrongly relied upon the said Judgement. This Court in the said Judgement has clearly held that the certificate issued by the Chartered Accountant along with other evidence such as Profit and Loss Account are sufficient evidence to consider the claim for refund. The said Judgement cannot be construed to lay down the proposition of law that the certificate issued by the Chartered Account would automatically enable the person to get exemption in the absence of any other evidence to support that he is entitled to refund. Hence, on a consideration of the above said Judgement and also on the consideration of the facts involved, we are of the opinion that the appeal will have to be allowed and accordingly the same is allowed and the question of law framed is answered in favour of the revenue.

Madras High Court Dated: 22.7.2010 C.M.A.No.344 OF 2009 Commissioner of Customs (Exports) Custom House, Chennai-600 001. Appellant Versus M/s.BPL Ltd., Bangalore.

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