IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.7.2010 CORAM THE HON'BLE MR.JUSTICE F.M.IBRAHIM KALIFULLA and THE HON'BLE MR.JUSTICE M.M.SUNDRESH C.M.A.No.344 OF 2009 Commissioner of Customs (Exports) Custom House, Chennai-600 001. .. Appellant Versus 1. M/s.BPL Ltd., BPL Towers, 13, Kasturba Road, Bangalore. 2. Customs Excise & Service Tax Appellate Tribunal South Zonal Bench, FKCCI-WTC Building, K.G.Road, Bangalore-560 009. .. Respondents Appeal is filed under Section 130 of Customs Act, 1962 to consider the substantial questions of law raised by the Revenue and allow this appeal by setting aside the impugned Final Order No.660/2007 dated 11.06.2007 received on 07.08.07 and to restore the Order-in-Originals. For petitioner :Mr. K.Ravi AnanthaPadmanabhan Sr.Central Government Standing Counsel . For R1 : No appearance For R2 : Tribunal O R D E R
(Order of the Court was made by M.M.SUNDRESH,J.) The appeal has been filed by the revenue challenging the order passed by the Tribunal in CESTAT Final Order 253/2005 dated 11.6.2007 whereby the order passed by the commissioner confirming the Order-in-Original was reversed.
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?"
3. The first respondent filed an application seeking refund of claim on 30.12.1998. The said application was rejected by the Assistant Commissioner of Customs on the ground that there is no material on record to show that the first respondent has absorbed the amount of refund claimed by him. The first respondent was also asked to produce relevant documents in support of its claim. Since the first respondent has failed to produce relevant documents, the claim was rejected. Aggrieved by the said order of rejection, the first respondent filed an appeal before the Commissioner of Appeals. The Commissioner of Appeals in turn has allowed the appeal in part by setting aside the Order-in-Original for the refund, subject to the test of unjust enrichment. Pursuant to the order passed by the Commissioner of Appeals, the first respondent made a request for refund for an amount of Rs. 1,15,827/-. The said request was rejected on 25.6.2004. The first respondent again filed an appeal challenging the said order which was also dismissed. The first respondent filed a further appeal before the Tribunal which was allowed in part based upon the certificate issued by the Chartered Accountant. Hence, the revenue has come on an appeal challenging the order passed by the Tribunal.
4. Heard Mr.Ravi Anantha Padmanabhan, Senior Central Government Standing Counsel appearing for the appellant and though notice was served, none appeared for the first respondent.
5. Learned counsel for the appellant submitted that in spite of the opportunity provided by the authorities, the respondent has not produced any evidence in support of the claim except relying upon the certificate issued by the Chartered Accountant. Learned counsel further submits that a conjoint reading of Section 27 and Section 28 C and D of the Customs Act, 1962 shows that the onus is on the importer seeking refund to satisfy the authorities with required documents while seeking refund of the excess amount paid. Therefore, the learned counsel submits that the appeal will have to be allowed since the Tribunal has committed an error in merely relying upon the Chartered Accountant's certificate.
6. We find considerable force in the submissions made by the learned counsel for the appellant.
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.
10. Inasmuch as the Tribunal has merely relied upon the certificate of the Chartered Accountant and in order to give sufficient opportunity to first respondent while answering the question of law in favour of the revenue, the order passed by the Tribunal is hereby set aside and the matter is remitted back to the Tribunal for a fresh consideration of the appeal filed before it. The first respondent is permitted to furnish any other substantial evidence in support of his claim for refund. It is made clear that if the first respondent has failed to produce any other evidence, the Tribunal is directed to proceed with the case and decide the same on merits in accordance with law.
Index : yes (F.M.I.K.J) (M.M.S.J.) Internet : yes 22.07.2010. kua To Customs Excise & Service Tax Appellate Tribunal South Zonal Bench, FKCCI-WTC Building, K.G.Road, Bangalore-560 009. F.M.IBRAHIM KALIFULLA,J, and M.M.SUNDRESH,J. kua C.M.A.No.344 OF 2009 22-07-2010