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TMI Blog2019 (12) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 26.04.2019 2. C/51666/ 2019 3,29,15,387 3,29,15,387 (01/10/2014 to 31/03/2015 01/04/2015 to 31/03/2016 2840 23.01.2017 CC(A) Cus/D-I/ACC-Export/Refund/NCH/ 779/2018-19 dated 28.03.2019 3 C/51665/ 2019 2,16,49,578 2,16,49,578 (08/10/2014 to 07/11/2014 01/04/2015 to 31/03/2016 27/2017 Dated 23.08.2017 CC(A) Cus/D-I/ACC-Export/Refund/NCH/ 781/2018-19 dated 28.03.2019 2. The facts relevant for the purpose are that the respondent filed the refund claim for such amount and for such period as mentioned respectively for each appeal in the above table, on 24.09.2015 The refund prayed is of Additional Customs Duty (CVD) paid on import under Section 3 (1) of Customs Tariff Act, 1975 read with Sl. No. 263 A and condition No.16 of Notification No. 12/2012-EX dated 17.03.2012 as was amended in light of the decision of Hon'ble Supreme Court in the case of M/s. S.R.F. Ltd. Vs. Commissioner, Customs, Chennai (Civil Appeal No. 9440 of 2003 dated 26.03.2005). The aforesaid refund was filed with respect to 15 Bills of Entries as mentioned in respective show cause notices. On scrutiny of the said refund claim and the documents submitted therewith following documents we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressed upon that there is no infirmity in the said order as the refund claimants have not shown the said amounts of refunds in their audited books of accounts as receivable from the Government but have debited the same to profit and loss account which means that amount of refund claim has been realized from the buyers of the imported goods. The CA Certificate is alleged to not to be a concrete evidence, as it is not specifying that the burden of CVD prayed to be refunded was not passed-on to the buyers. Above all, there is no corroborative evidence to the said CA Certificate. Ld. D.R. has also impressed upon that as per accounting principle refund claim should have been shown as recoverable in the balance-sheet at the time of the end of respective financial years. But as already mentioned above, the assessees have not shown the same as recoverable but as the expenses charged to profit and loss account, which clarifies that the differential CVD has already been recovered by the assessees from the buyers of the goods in subsequent financial year. Ld. D.R. has placed reliance upon the decision of this Tribunal, Mumbai Bench in the case of M/s. Cosmos Films Ltd. vs. CCE & Customs, Aur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciples laid down in the SRF judgment by the Hon'ble Supreme Court. The present refund claim is post said judgment. The said principles have to be applied to the present refund claim, which permit the sanction of the whole amount of the refund. With these submissions, the order of Commissioner (Appeals) is impressed upon to have no infirmity. Same are prayed to be upheld and appeals are prayed to be dismissed. 7. While impressing upon the admissibility of CA Certificate, ld. Counsel has relied upon the case laws in the case of Nokia India Sales Pvt. Ltd. v. CC, Hyderabad in Order NO. A/30757-30758/2018 dated 24.07.2018 and Eastern Shipping Agency v. CST, Ahmedabad - 2013 (32) STR 630 (Tri.-Ahmd.) With respect to the accounting treatment given to the record submitted, ld. Counsel has relied upon two decisions in the cases of Deputy Commissioner of Commercial Taxes v. Hindustan Lever Ltd. - (2016) 13 SCC 28 & Savita Oil Technologies Ltd. vs. Commissioner of Central Excise, Belapur - 2016 TIOL 1444 CESTAT MUM. It is finally impressed upon that in Nokia India Sales Pvt. Ltd. in Final Order No. A/30757-30758/2018 dated 24.07.2018 the refund claim was sanctioned. The facts of present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D amount separately which, prima facie, indicate that the burden of SAD has not been passed on by the importer to their customers directly. Further, I have already taken note of the fact that the importer has submitted a Chartered Accountant's Certificate issued by M/s. Nayyar Maniar & Associates LLP, M. No. 502101, to the effect that certifying that the burden of CVD under this refund claim has not been passed on to the buyers and the refund being claimed is shown in their books of account/balance sheet for the year ended 31 March, 2016 as amount recoverable from the Customs. Accordingly, I hold that the provisions of unjust enrichment clause under Section 28D read with Section 27 of the Customs Act, 1962 are not applicable to the facts of this case and hence not invocable." 27. By the same yardstick, there was no reason whatsoever for respondent No. 4 not to accept the very same documents in respect of the imports between 27th March, 2015 and 31st March, 2015. The certificate of the CA is categorical that the incidence of CVD, even in respect of these imports, had not been passed on to the customers. Consequently, there was no valid justification for respondent No. 4 to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t together with interest due thereof upto the date of refund - which shall be done within three weeks from today." 11. Further it has also been settled that fault with the balance sheets and duty paid under protest are not sufficient to prove the unjust enrichment on part of the assessee. It has been settled in the case of Tecil Chemicals & Hydro Power Ltd. vs. Commr. Of C. Ex., Cochin reported in 2003 (151) E.L.T. 136 (Tri. - Del.) wherein it is held: "17.The appellants have also produced the copies of the balance-sheets for the disputed period. Learned Commissioner (Appeals) has found fault with the balance-sheets on the ground that they had not shown the duty paid under protest as the amount recoverable from the Government, therein. But in our view, that could not be made basis for discarding the balance-sheets and no inference from that omission could be taken that the incidence of duty had been passed on by the appellants to the consumers. The correctness of the Chartered Accountants' Certificates and the comparative tables of cost and selling price, sale invoices, gate passes produced by the appellants for the period in question, had not been doubted by the Commissioner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roducing the auditor report required to claim the refund of special additional duty, and this report unequivocally stated that the burden had not been passed on directly or indirectly and in coming to such conclusion, it had taken into account how the price of traded goods had been arrived at - Section 28D ibid. 13. We also observe that: (i) Revenue has not placed any specific evidence on record to rebut the findings of the Commissioner (Appeals) as regards the factual position that the burden of duty incidence was not passed on by the respondents to their customers. (ii) The various judgments have been relied upon by the respondent where the duty incidence has not been shown separately on the invoices and the agreed upon price has only been changed. (iii) The respondents have also been able to show that the average ex-factory price for the period prior to the relevant period, during the relevant period and thereafter, remains almost constant (iv) The assessees have paid the Excise duty on the intermediate product on insistence of the Department, therefore they paid the duty 'Under Protest'. (v) (a) The invoices evidencing the sale, which were on record, showed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d supported by the following two judgments. (i) CC, Jamnagar v. H.R. & Sons & Anr. - 2001 (42) RLT 121 (CEGAT) (ii) Panihati Rubber Limited v. CCE, Calcutta-II - 2001 (127) E.L.T. 742 (Tri-Cal.). Hon'ble Karnataka High Court in case of Commissioner of Customs, Bangalore vs. Apple India Pvt. Ltd. reported in 2014 (309) E.L.T. 29 wherein it is held: Refund - Presumption that incidence of duty has been passed on to the buyer - Rebuttal of - HELD : Section 28D of Customs Act, 1962 states that there is a presumption that incidence of duty has been passed on to the customers and that every person who has paid duty on any goods under the Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods - Thus, it is a rebuttable presumption - On facts, assessee rebutted said presumption by producing the auditor report required to claim the refund of special additional duty, and this report unequivocally stated that the burden had not been passed on directly or indirectly and in coming to such conclusion, it had taken into account how the price of traded goods had been arrived at - Section 28D ibid. 18. Finally ..... X X X X Extracts X X X X X X X X Extracts X X X X
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