TMI Blog2017 (8) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the refund claims of the Petitioner on specious grounds. The Respondent is directed to allow the Petitioner’s refund in respect of the claims made for the imports for the period 27th March, 2015 to 31st March, 2015 - petition allowed - decided in favor of petitioner. - W. P. (C) 2102/2017 - - - Dated:- 26-7-2017 - S. Muralidhar And Prathiba M. Singh, JJ. For the Petitioner : Mr. Tarun Gulati, Mr. Shashi Mathews, Mr. Ankit Sachdeva, Ms. Rachana Yadav Mr. Anupam Mishra, Advocates For the Respondents : Mr. Arpit Shukla, Advocate for R-1. Mr. Amit Bansal Mr. Akhil Kulshrestha, Advoates for R-2, 3 4. ORDER Dr. S. Muralidhar, J. 1. The Petitioner, Yu Televentures Private Limited, is aggrieved by the rejection, by the impugned order dated 22nd January, 2017 passed by the Assistant Commissioner (Refund) at Air Cargo Import, Refund Section (Respondent No.4), of its claim for refund of the countervailing duty (CVD) in respect of the imports made by it between 27th March, 2015 and 31st March, 2015. 2. The Petitioner sells electronic products, including mobile phones. The Petitioner imported mobile handsets along with mobile phone parts, components, ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n relation to which such refund is claimed to its customers; e) Copy of judgment delivered by the Hon ble Supreme Court in the case of SRF Ltd. v. Commissioner of Customs, Chennai (supra); f) An affidavit stating that the claim for refund is not barred by limitation and the refund amount would not be used in subsequent refund applications. g) Letter submitted at the time of clearance that duty was paid under protest. 5. After examining the refund application, the Deputy Commissioner (Refund) issued a Memorandum dated 26th February, 2016 stating that the Supreme Court in Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) (2005) 10 SCC 436 held that once an assessment order is passed, duty would be payable in terms thereof unless that order was reviewed under Section 28 of the Act or modified in appeal. Consequently, it was held that since the assessment of the B/Es against which refund was claimed had become final, it should be held that the duty had been correctly paid. 6. In its reply dated 15th March, 2016, the Petitioner pointed out that the aforementioned decision had no relevance. The Petitioner pointed out that the assessment done under the B/Es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioner, a memorandum dated 27th October, 2016 was issued by the Principal Commissioner of Customs (Import), Refund Section noting that only a CA certificate had been submitted for the rebuttal of unjust enrichment. It was stated that the inference drawn by the Independent CA cannot be said to be a rebuttal of the statutory presumption of passing on of the duty incidence. It was noted that the certificate issued by the CA is not found conclusive. Accordingly the Petitioner was asked to furnish further documents including self-certified copies of audited financial statements for financial year ( FY ) 2015-16 and any other documents for rebuttal of unjust enrichment. 13. In the meanwhile, on 8th November, 2016, this Court allowed W.P. (C) No.10618/2016 [Intex Technologies (India) Ltd. v. Union of India]. There the refund claim was sought to be denied by not accepting the certificate issued by the CA. The Court issued a specific direction to the Respondent to process the petitioner s refund claim and pass appropriate orders having regard to the fact the petitioner had filed supporting certificates in the form of a Chartered Accountant s clarification/certificate etc. claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter. However, we do not see any reason to grant any interim relief in favour of the petitioner. Apart from that, by the judgment under appeal, the High Court directed an action to be taken against the Officer of the Union of India for the said observations made in the proceedings before the Officer. Learned Additional Solicitor General seeks stay of the operation of the directions. However, we are not inclined at this stage to stay the operation of the directions, however, we call upon learned Additional Solicitor General to place before this Court as to what action Union of India is proposed to take against the Officer in the context of the matter. Tag with SLP(C) no. 26530 of 2016. List after a week. 18. By the impugned order, dated 22nd January, 2017, Respondent No. 4 rejected the refund claims in relation to the back covers on the ground that the back covers did not fall within the exemption granted by the Notification No.1/2011-CE dated 1st March, 2011. Further, the refund claims in relation to B/Es filed between 27th March, 2014 and 31st March, 2015 was sought to be transferred on the ground that it was hit by unjust enrichment and that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erm loans and advances) to the financial statements/balance sheet for the year ending on 31st March 2016. Whereas no amount has been shown recoverable from Govt. in the audited financial statements/ balance sheet for year ending on 31st March 2015. 23. Thereafter, it was observed that the refund claim had to be adjudged on the principle of unjust enrichment distinctly in respect of B/Es mentioned at serial Nos. 1 to 3 (i.e., between 27th March, 2015 and 31st March, 2015) and the remaining at serial Nos. 4 to 46 (i.e., June, 2015 and July, 2015). 24. It has been explained by learned counsel for the Petitioner that no refund claim had yet been made in respect of the aforementioned B/Es during the financial year which ended on 31st March, 2015. Since the refund applications were submitted only during FY 2015-16, the outstanding refund in respect of these four B/Es could not have been shown in the balance sheet for FY 2014-15. Indeed, the mere fact that this amount was not shown as outstanding during the year 2014-15 would not mean that the Petitioner is not entitled to claim refund. The Petitioner cannot possibly be denied refund if it, in fact, did not pass on the burden of C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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