Refund claim processing for sanction:
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 http://indiankanoon.org/doc/1289857/
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
Hon'ble Mr.Justice F.M.Ibrahim Kalifulla and Hon'ble Mr.Justice M.M.Sundresh
Commissioner of Customs (Exports) Custom House, Chennai-600 001. Appellant
Versus M/s.BPL, Bangalore
---------------------
Words of Wisdom:
The legislators have wisely worded the s.27 and s.28 C and
s.28 D enunciating a very simple manner of check with regard to sanction of
refund and UJE. It is binding both the assessee and the officials
granting refund. "It is settled law that where a statute requires
a particular act to be done in a particular manner, the act has to be done in
that manner alone. Every word of the statute has to be given its due
meaning." Supreme Court of India Bench: K
Balakrishnan, A Kumar CASE NO.: Appeal (civil) 7015 of 2005 PETITIONER:
Competent Authority RESPONDENT: Barangore Jute Factory & Ors.
DATE OF JUDGMENT: 23/11/2005 JUDGMENT (arising out of SLP )
16820 OF 2004) With Civil Appeals No. 7016-17 of 2005 (arising out SLP(C )
Nos.17874-17875 of 2004) AND WITH Civil Appeal No. 7018 of 2005 (@ SLP (C )
No.18773 of 2004)
Moreover it is too dangerous for the officials to delve into
the arena of the Chartered Accounts in trying to verify other allied accounts,
Balance etc. which departmental officials are seldom proficient and the time at
their disposal may not allow such a specialized and complex accounting
check.
