M/s. J.K.Chemical vs Commissioner Of Customs (Port), Kolkata

Ashok Jindal, Member (J)

Both the appeals are having common issue, therefore, both are disposed of by a common order.

The facts of the case are that the appellant filed refund claims under Notification No.102/2007-CUS dated 14.09.2007. The appellant was allowed refund of SAD paid by them. While granting refund claims, the department relied on the Chartered Accountant’s Certificate produced by the appellant. Subsequently, it was found that the certificate issued by the Chartered Accountant was not authentic. Accordingly, recovery proceedings were initiated. After due process, the demands were confirmed. Against the said orders, the appellants are before us.

The Ld.Counsel appearing on behalf of the appellant submits that production of Chartered Accountant Certificate is not mandatory and has not been made a condition precedent under the Notification No.102/2007-CUS dated 14.09.2007. On account of CBEC Circular No.06/2008-CUS dated 28.04.2008, the importers were directed to submit copies of the Chartered Accountant’s Certificate. In this case, the importer trusted the third party to arrange for the Chartered Accountant’s Certificate and did not know that the concerned Chartered Accountant had expired. Therefore, the Ld.Consultant submits that they had no mal fide role in submitting the Chartered Accountant’s Certificate in question. The appellants have also produced Chartered Accountant’s Certificate before this Tribunal and requested that the matter be remanded back to the adjudicating authority for considering the fresh Certificate issued by the Chartered Accountant. He also relied on the decision of this Tribunal in the case of Skylark Office Machines v. Commissioner of Customs (Port), Kolkata vide Final Order No.77243/2023 dated 09.1.2023, wherein on the identical issue, the matter was remanded to the adjudicating authority.

On the other hand, the Ld.AR for the department reiterated the findings of the lower authority.

Heard the parties, considered the submissions.

We find that identical issue came up before this Tribunal in the case of Skylark Office Machines (supra), wherein this Tribunal observed as under:-

“5. On perusal of records, we find that no ulterior motive of the appellant towards production of the earlier certificate has been proved. They have produced a fresh Chartered Accountant’s Certificate dated 06.10.2023. Therefore, following the ratio of the cited case law, we remand the matter to the adjudicating authority.”

As on the identical facts, this Tribunal has remanded the matter back to the adjudicating authority, observing that no ulterior motive of the appellant towards production of the earlier certificate has been proved and they have produced a fresh Chartered Accountant’s Certificate. Therefore, following the precedent decision on the identical issue, we remand the matter back to the adjudicating authority with the direction to check the veracity of the certificate issued by the Chartered Accountant and other relevant documents. If the same are found to be in order, pass a necessary order allowing the refund claim filed by the appellant. If the refund is held as eligible, the present confirmed demand against the appellant along with interest and penalty would get set aside.

Both the appeals are disposed of by way of remand.