ORDER
T.K. Jayaraman, Member (T)
1. This appeal has been filed against the Order-in-Appeal No. 110/2004 dated 14.10.2004 passed by the Commissioner of Customs (Appeals), Bangalore.
2. The appellants imported Low Ash Metallurgical (LAM) Coke. They paid the Special Additional Duty(SAD) of Customs to the tune of Rs. 1,02,59,908/-. In terms of Notification No. 23/2002-Cus dated 01.03.2002, as amended by Notification No. 68/2003 dated 30.04.2003, they claimed the benefit of exemption from SAD and, therefore, filed refund claim. The original authority rejected the refund claim on various grounds. Therefore, the appellants approached the Commissioner (Appeals). The Commissioner (Appeals) rejected their appeal and upheld the Order-in-Original passed by the Assistant Commissioner. As the appellants are aggrieved over the impugned order, they have come before this Tribunal for relief.
3. Smt. Komala Choudhury, the learned Consultant, appeared for the appellants and Shri Anil Kumar, the learned JDR, for the Revenue.
4. Heard both sides.
5. The Commissioner (Appeals) has held that the appellant filed the Refund claim without challenging the order of the assessment. Moreover, according to him, they had not fulfilled the conditions of the exemption notification cited supra. He has also relied on the Apex Court decision in the case of Priya Blue Industries Ltd. v. CC (Preventive) – . He has not gone into the unjust enrichment aspect. We find that the Bill of Entry had been assessed provisionally under Section 18 of the Customs Act. The appellants have stated that even before the provisional assessment was finalized, they had lodged the claim for refund. In these circumstances, it cannot be said that the appellants had failed to challenge the assessment order. Therefore, the rejection of the refund claim in terms of the Priya Blue Case is not correct. Moreover, the appellant’s case is covered by the ratio of the rulings of this Bench in the case of Technosales Corporation v. CC, Bangalore 2006 (200) ELT 296 (Tri.-Bang.) and CCE, Cochin v. OEN India Ltd. 2006 (202) ELT 836 (Tri.-Bang.) holding that filing of a refund claim itself is a challenge of the assessment order. While holding such a view, this Bench relied on the earlier judgment of the Apex Court in the case of Shri Vallabh Glass Works and Anr. v. UOI .
5.1. As regards the observance of procedure laid down in Customs [Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods] (IGCRDMEG) Rules, we find that the appellant had duly registered himself under Rule 3 of the said Rules vide Registration Certificate dated 23.05.2000 and filed application dated 01.07.2003 under Rule 4, had executed bond undertaking end use of the imported goods and maintained accounts of quantity and utilization as per Rules. Moreover, the conditions laid down for availing exemption from SAD under the relevant Notifications are identical to the conditions prescribed for availing exemption from ADD under Notification 69/2000. We note that the appellant was granted exemption from ADD, as they had satisfied the conditions laid down in the said Notification. When the conditions were similar and if they satisfy them for exemption from ADD purpose, it cannot be said that they had not fulfilled the same for SAD purpose. Therefore, the finding that they had not fulfilled the conditions is not sustainable.
5.2. As regards unjust enrichment, an independent Chartered Accountant has given a very detailed Certificate to the effect that the appellant had not passed on the incidence of duty to any other person. After examining the relevant accounts, the Chartered Accountant has certified that the duty paid on account of SAD has been shown as “Receivables” by debiting to a separate account called “Amounts Recoverable-Others” and the same has not been treated as Revenue expenditure and as a part of raw material cost. Thus, it is very clear that the duty burden has not been passed on and the refund claim is not hit by unjust enrichment. In the following decisions, this Bench has held that the Chartered Accountant’s Certificate, showing that the amount was not passed on, has to be accepted unless the Revenue has strong evidence to hold otherwise.
(i) Toyota Kirloskar Motor Ltd. v. CCE, Aurangabad
(ii) Bripanil Industries Ltd. v. CC, Bangalore 2006 (199) ELT 431 (Tri.-Bang.)
(iii) CC, Bangalore v. AT & S India Pvt. Ltd. 2006 (199) ELT 123 (Tri.-Bang.)
6. Summing up, we hold that the appellant, having fulfilled the conditions of the relevant notification, is entitled for the refund amount. The claim is not hit by unjust enrichment in view of the Chartered Accountant’s Certificate. The decisions of the Priya Blue case will not be applicable, as the refund claim was filed even before the provisional assessment was finalized. Hence, we allow the appeal with consequential relief, if any.
(Operative portion of this Order was pronounced in open court on conclusion of hearing)