Custom, Excise & Service Tax Tribunal
Cc, Bangalore vs M/S. Sun Mircrosystems India Pvt. Ltd on 28 May, 2012
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench Division Bench
Court I
Date of Hearing:28/05/2012
Date of decision:28/05/2012
Application No.C/Stay/1040/2010
Appeal No.C/1764/2010
(Arising out of Order-in-Appeal No.107/2009 dt. 12/05/2010
passed by CC(Appeals), Bangalore)
For approval and signature:
Honble Mr. P.G. Chacko, Member(Judicial)
Honble Mr. M. Veeraiyan, Member(Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
CC, Bangalore
..Appellant(s)
Vs.
M/s. Sun Mircrosystems India Pvt. Ltd.
..Respondent(s)
Appearance Mr. M.M. Ravi Rajendran, Deputy Commissioner(AR) for the Revenue.
Ms. Neetu James, Advocate for the respondent.
Coram:
Honble Mr. P.G. Chacko, Member(Judicial) Honble Mr. M. Veeraiyan, Member(Technical) FINAL ORDER No._______________________ [Order per: P.G. Chacko] This application filed by the Department(appellant) seeks stay of operation of the impugned order. On a perusal of the records and hearing both sides, we find that the appeal itself is fit for final disposal at this stage. Accordingly, after dismissing the stay application, we take up the appeal.
2. This appeal of the Revenue is directed against the learned appellate Commissioners order granting certain refund to the respondent after holding that they had, by producing Chartered Accountant(C.A.)s certificate, succeeded in getting over the bar of unjust enrichment. On a perusal of the records, we further note that the learned Commissioner(Appeals) was following his own earlier Order-in-Appeal No.61/2010 dt. 30/03/2010. The learned Deputy Commissioner(AR) points out that the said Order-in-Appeal No.61/2010 was appealed against by the Department and that this Bench allowed that appeal by way of remand to the Commissioner(Appeals). A copy of the remand order viz. Final Order Nos.170 & 171/2011 dt. 24/02/2011 is also produced. On a perusal of this Final Order, we note that a certificate of C.A., which was heavily relied upon by the assessee as evidence against the bar of unjust enrichment, was examined by this Bench and it was held to the effect that such certificate per se would not conclusively prove that the burden of duty had not been passed on. It was held that the books of accounts of the assessee required to be examined to find out whether the same disclosed any proof in support of the claim that the burden of duty had not been passed on.
3. We have heard the learned counsel for the respondent also, who has argued in support of the appellate Commissioners order. It is prayed that the C.A.s certificate be accepted as conclusive evidence against the bar of unjust enrichment.
4. After giving careful consideration to the submissions, we have found this case to be fit for remand to the original authority for more reasons that one. Firstly, the respondent(assessee) did not appear before the original authority to be heard despite notice. Secondly, they did not respond to the requisitions of that authority for producing documents. Thirdly, the assessee chose to rely on their C.A.s certificate before the appellate authority as evidence of burden of duty not having been passed on, without the certificate getting duly scrutinized by the original authority with reference to the books of accounts and allied documents. As rightly observed by this Bench in the aforesaid remand order dt. 24/02/2011, independent verification of the books of accounts of the assessee is imperative in a case of this nature. After all, the C.A. issued the certificate on the basis of such books of accounts. The departmental authorities are not bound by the C.A.s certificate and have got to independently verify the books of accounts in order to see whether the fact certified by the C.A. is true. It is this burden which was placed by this Bench in the cited case on the lower appellate authority. On our part, we would like to get the verification of records done by the original authority. Accordingly, after setting aside the impugned order and allowing the appeal by way of remand, we request the original authority to deal with the subject refund claims in accordance with law and the principles of natural justice and in terms of this order and pass a speaking order thereon. Needless to say that the claimant shall have right to adduce documentary evidence in the form of their books of accounts and allied records to substantiate their plea that their claim for refund is not hit by the bar of unjust enrichment. Further, needless to say that the party should be given a reasonable opportunity of being heard. Stay application also disposed of.
(Pronounced and dictated in open court) (M. VEERAIYAN) MEMBER (TECHNICAL) ( P.G. CHACKO ) MEMBER (JUDICIAL) Nr 4