CA certificate for examination of unjust enrichment is not essential requirement for sanction of SAD refund

The Customs, Excise & Service Tax Appellate Tribunal(CESTAT Delhi) in the matter of M/s Marina Enterprises Vs. Commissioner ruled out that CA certificate required for examination of unjust enrichment is not essential requirement for sanction of SAD refund.

The appellant imported goods for resale. Being entitled to refund of SAD, which is deposited at the time of import in lieu of sales tax, the same is refundable when the importer subsequently sells the goods in India and thereafter deposits sales tax with the Sales Tax Department. Upon such resale, the appellant became entitled to refund of the SAD in terms of Notification No. 102/2007-Cus. dated 14.09.2007.

The Coram found out that, “In the earlier round of litigation this matter had travelled to this Tribunal and the Tribunal had remanded the matter for a decision on merit. The appellant contested the matter before the Commissioner (Appeals) on the ground that, C.A. certificate it is not an essential requirement for sanction of the SAD refund, in terms of the said notification as amended. It was further urged that admittedly the appellant have sold the goods in India after importing and have paid sales tax on the said goods. Admittedly, they are registered with the Sales Tax Department having TIN number and have charged sales tax in their sales bill. Further, from the sample copy of sales bill produced before this Tribunal, it is evident that appellant have not given break-up of additional duty or SAD in their sale bill. Further, the appellant have mentioned on the body of sale invoice that – no benefit of additional custom duty levied under sub-section (5) of Section 3 of the Customs Tariff Act shall be admissible.”

Evidently the buyer of the goods from the appellant cannot take the benefit or credit of SAD of Customs, which was paid by the appellant – importer at the time of import.

Considering the rival contentions and in the facts and circumstances, it is evident that it is the appellant – importer who has borne the incidence of special additional duty (SAD) and has not passed on the same to the buyer of the goods.

The Appellate Tribunal held that, “Accordingly, I find that the learned Commissioner (Appeals) have erred in holding that the refund claim was hit under the doctrine of unjust enrichment. Accordingly, this appeal is allowed and the impugned order is set aside. The appellant is held entitled to refund of the amount of SAD Rs.5,43,443/-. In the result, the appeal is allowed.”

The Judgment was made by Hon’ble Mr. Anil Choudhary.

The Petitioner was represented by Sh. Awadesh Kumar Pandey and Respondent was represented by Ms. Tamanna Alam.

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