By TIOL News Service

CHENNAI, FEB 03, 2017: THE issue pertains to rejection of refund claim of duty of customs paid by the importer. The original authority rejected the claim by holding that "The CA certificate merely states the verification of certain invoices during the course of their audit. A few sales invoices are placed on record. Neither the certificate of the Chartered Accountant nor the documentary evidence submitted is conclusive enough to rule out the possibility of unjust enrichment. There has not been any mention of their books of accounts like Balance Sheet, Profit and Loss Account, Ledger Account etc., and how the duty to be refunded has been accounted for in these documents."

On appeal, the importer produced additional evidence to prove that the duty was not collected by the importer, but the same was rejected by the Commissioner (Appeals) by applying Rule 5 of the Customs (Appeals) Rules, 1982. The Tribunal also upheld the same. Aggrieved, the importer is before the High Court.

After hearing both sides, the High Court held:

+ Far from laying down a bar in absolute terms, Rule 5 has clearly attempted to regulate the discretion liable to be exercised by the Appellate Commissioner, by providing for four different kinds of exceptions. In the instant case, the importer has been urging that because of a technical snag, he could not retrieve in time necessary information from the computer system to enable him place it before the adjudicating authority. This apart, when sales invoices over a long period of time have been placed before the Appellate Commissioner to demonstrate that the incidence of duty paid has, in fact, not been passed on to its customers, such a piece of evidence is a relevant one for adjudicating the claim for refund, made by the importer. There appears to be sufficient cause that prevented the importer from placing the necessary material before the Appellate Commissioner.

+ In that view of the matter, the approach adopted by the Commissioner of Appeals in rejecting to take into consideration the material evidence produced by the importer cannot be sustained. In addition, though the Appellate Commissioner viewed the same as a relevant piece of evidence and which would sustain the claim for refund, yet, he declined to consider the same, which is a matter for concern.

+ When it comes to the order of the Tribunal, the Tribunal has adopted a very rigid approach. It is appropriate to notice that under Section 129-A, any aggrieved person is entitled to prefer an appeal to the Appellate Tribunal, whereas, under Section 129-B, the Appellate Tribunal has been conferred with the power to pass such orders, as it thinks fit, either confirming, modifying or annuling the decision or the order appealed against or may refer the case back to the authority, which passed such decision or order with such directions, as the Appellate Tribunal may think fit, for fresh adjudication or order, as the case may be, after taking into consideration additional evidence, if necessary. Thus, the jurisdiction conferred upon the Appellate Tribunal in terms of Section 129-B is fairly wide. Obviously, it is intended to secure a proper adjudication of the lis, both involving questions of fact and law as well.

+ The Commissioner of Appeals and also the Tribunal have both grossly erred in not looking into the additional evidence, which has been produced before the Appellate Commissioner. The Order in Appeal, passed by the Commissioner of Appeals, as well as the impugned order passed by the Tribunal are set aside and the matter is remitted back for fresh consideration by the Commissioner of Appeals.

(See 2017-TIOL-228-HC-MAD-CUS)