Case Law Details
Commissioner of Customs (Exports) Vs LG Electronics India Pvt. Ltd. (CESTAT Chennai)
As regards the issue of unjust enrichment, CESTAT find that the appeal has stated that the procedure to be adopted for refund of 4% additional duty of customs is given in Board Circular No. 6/2008- Customs (F. No. 401/104/2007-Cus.III) dated 28.4.2008 and Customs Public Notice No. 39/2011 dated 14.6.2011.
As per para 6.2 of the said Board‘s circular, Statutory Auditors / Chartered Accountants are required to explain how the burden of 4% CVD has not been passed on by the importer and to fulfill the requirements of unjust enrichment. We find that the certificate of the Chartered Accountant submitted in this case does mention that the aforesaid claim of Rs.43,98,399 is out of Additional Duty of Customs and has been recorded in the books of accounts as ‘Claims Recoverable’ from Customs Department. There is nothing in the appeal to show that 100% verification of invoices was not done by the Chartered Accountant before submission of the claim. In fact, the original authority has recorded his satisfaction on unjust enrichment at para 9 and 10 of his order dated 25.7.2011. We must admit to having been handicapped at this stage, for the appeal book filed by Revenue apart from not containing copies of representative invoices and the concerned Bills of Entry as noted above, does not contain a copy of the Chartered Accountants Certificate that is in dispute nor the exemption notification or the Board’s circular or the Custom House, Public Notice relied upon by them, which are critical documents in this appeal. Copy of the said documents were produced during the hearing by the respondent. Further we find the allegations in the appeal to be general in nature and does not pinpoint any specific para of the Notification / Circular / Public Notice which has been violated or not adhered to so that the same could be examined in detail. Merely stating that ‘the review order was issued on grounds that the certificate is not emphatic to the effect that unjust enrichment is not applicable and the incidence of duty was not passed on to the ultimate customer’, will not suffice, a more focused approach is required.
CESTAT find that the Boards Circular only requires the statutory auditor/Chartered Accountant who certifies the importer’s annual financial accounts under the Companies Act or any statute, to explain how the burden of 4% CVD has not been passed on by the importer and to fulfill the requirement of unjust enrichment. This is, as stated by the respondent, satisfied by the Chartered Accountant’s certificate.
We do not find grounds in the appeal strong enough to prima facie differ from the views of the respondent.
Please become a Premium member. If you are already a Premium member, login here to access the full content.
