TMI Blog2018 (8) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... [ Order Per : M. V. Ravindran ] These two appeals are directed against Order-in-Appeal No. HYD-CUS-000-APP-099 100-17-18 dated 06.11.2017. 2. The appellants had imported mobile phones falling under sub-heading No. 85171290 of the Customs Tariff Act, 1975 under cover of 30 bills of entry filed during the period October, 2014 to January, 2015. They paid duty on the goods @ 6% CVD and 1% NCD. Subsequently, the appellant-importer claimed refund of duty amounting to ₹ 27,78,339/- and ₹ 31,29,645/- in view of the ratio of the decision rendered by the Hon ble Supreme Court in the case of SRF Ltd., Vs. Commissioner of Customs (Civil Appeal No. 9440 of 2003) on the ground that they were eligible for concessional rate of duty of CVD @ 1% advalorem by virtue of Sl. No. 263A of Notification No. 12/2012-CE dated 17.03.2012. However, the original authority rejected the claim of refund filed on the ground that exemption envisaged under Sl. No. 263A of Notification No. 12/2012-CE dated 17.03.2012 as amended was conditional notification upon the importer satisfying certain conditions and on demonstration of such compliance before the assessment of goods. The appellant appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the bill of entry not being challenged, the question of refund does not arise and appellant was directed to reply to the said allegation only. It is his further submission that the incidence of duty was not passed on is evidenced by the appellant by a certificate issued by the Chartered Accountant who audited their records and certified that the amount of the refund claimed by the appellant has not been passed to their customers. He relied upon the decision of the Hon ble High Court of Delhi in the case of Yu Televentures Pvt. Ltd., Vs. Union of India Ors [2016 (340) ELT 88] on an identical set of facts and submits that the said judgment of the Hon ble High Court has been affirmed by the Apex Court by dismissed the appeal vide an order dated 06.02.2017 and 20.02.2017. He would submit that the said judgment of Yu Televentures Pvt. Ltd., has been followed by the Hon ble High Court of Delhi in the following decisions. i) Vishal Video and Appliances Ltd., Vs. UOI in writ petition No. 7851/2016 order allowed on 05.09.2016. ii) Intex Technologies (India) Limited writ petition No. 10618/2016 allowed by a judgment dated 08.11.2016 and upheld by the Apex Court by an order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in dispute. 9. On perusal of the Chartered Accountant Certificate which is produced before the Lower Authorities and also produced before the Tribunal, I find that the Chartered Accountant (Auditors) certificate clearly recorded that for the purpose of examining the case of unjust enrichment, they audited importer s books of accounts and other documents and record of the goods, based upon such verification, certified that incidence of duty is not passed on. The said Chartered Accountant is along with annexures showing as to how calculations are arrived at. As against such clear evidence from the Chartered Accountant, we find that Revenue has not adduced contrary evidence to show that appellant herein had passed on the incidence of duty. In the absence of any contrary evidence, we have to hold that the Chartered Accountant s Certificate as produced by appellant needs to be accepted. 10. Secondly, we do find that the decision of the Hon ble High Court of Delhi in the case of Yu Televentures Pvt. Ltd., is specifically on this point and with great respect, I reproduce the relevant paragraphs: 11. By the impugned order dated 7th July, 2016, Respondent No. 4 rejected th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner therein by order dated 05.09.2016 (unreported) their Lordships had an occasion to consider the ground of unjust enrichment. It was held as under: 4. This Court notices from the record that the concerned adjudication officer, who rejected the petitioner s claim for refund has adopted the same approach that she did which became the subject matter of scrutiny in several previous orders commencing from Micromax (supra). We notice that the Micromax (supra) was revisited in Yu Televentures v. Union of India [W.P. (C) No. 6750/2016, decided on 3-8-2016]. In the present case as well, the order rejecting the refund was made during the same period and apparently by the same officer who rejected the refund claim in Yu Televentures (supra). 5. It is contended lastly by the respondents that this Court should not grant relief in this case since there is no ascertainment as to whether the CVD was in fact passed on and collected from the end user. The petitioner, on the other hand, submits that all relevant documents, including the Chartered Accountant s certificate as required by the rules were furnished. The relevant part of the CA s certificate reads as follows: D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and rejected the refund applications filed by the petitioners. Petitioners in M/s Yu Televentures Pvt. Ltd., in writ petition No. 2102/2017 again moved to Hon ble High Court of Delhi and their Lordships by an Order dated 26.07.2017 recorded detailed finding on the issue after considering various decisions/orders of the Hon ble High Court of Delhi and held as under: 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 CVD to its customers. 25. What respondent No. 4 had to examine was whether the claim of the petitioner that it had not passed on the incidence of CVD in respect of the above B/E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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