TMI Blog2019 (12) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... Mere fact that the amount of differential CVD is shown as recoverable in profit and loss account is, in itself, not sufficient to prove that burden thereof has been passed by the assessee to the buyers. Onus otherwise rests upon the Department to prove the same. There is no such evidence produced by the Department. On the contrary, the assessee has placed on record the C.A. Certificate falsifying the allegations of unjust enrichment. Same cannot be ignored, that too, in absence of any evidence to the contrary. The questions decided in favour of the assessee-respondents - Appeal dismissed - decided against Revenue. - Customs Stay Application No.50557 of 2019, 50562 of 2019, 50563 of 2019 in Customs Appeal No. 51622 of 2019, 51665 of 2019, 51666 of 2019 [DB] - Final Order Nos. 51730-51732/2019 - Dated:- 24-12-2019 - HON BLE MR. C.L. MAHAR, MEMBER (TECHNICAL) AND HON BLE MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Shri. Rakesh Kumar, Authorised Representative for the Appellant Shri. Tarun Gulati, Sr. Advocate with Shashi Mathews, Advocate for the Respondent ORDER RACHNA GUPTA: The present order disposes of 3 appeals, the respondent and the issue involve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Audited Balance Sheet for the subject period 5. Re-assessed Bills of Entry in respect of the aforesaid refund claim. 3. Respondents in their refund application had stated that they had imported mobile phones and made excess payment under protest as they complied the condition No.16 of Notification No.12/2012 in accordance whereof there should be levy of CVD at the rate of 1%. However, at the time of Customs clearance, the respondents paid CVD at the rate of 12.5%. Accordingly, the refund of respective differential CVD paid was prayed. Though all the demanded documents were provided by the assessees, and were subjected to the audit, but vide respective Order-in-Original out of total refund claim of ₹ 5,22,16,320/- in Appeal No.51622/2019, ₹ 5,45,64,965/- in appeal No.51666/2019 and ₹ 5,45,64,965/- in Appeal No. C/51665 of 2019, a refund claim of ₹ 24,88,913/-, ₹ 3,29,15,387/- ₹ 2,16,49,578/- respectively, as was not been shown accountable in the balance-sheet for the respective year, was ordered to be deposited with Consumer Welfare Fund. The respective appeals against the said orders were allowed setting aside the order of the credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. vs. CCE, Jaipur reported as 2015 TIOL 3468 CESTAT, Delhi to impress upon that the uniformity in price before and after assessment does not lead to inevitable conclusion that incidence of duty has not been passed on to the buyers as such uniformity may be due to various other factors. It was held in Poddar Pigments (supra) case that the burden of assessee cannot be deemed to have been discharged merely by saying that price of final products reduced after import of impugned goods because price of final products do not depend solely on the price of impugned goods. Finally, impressing upon that it is very much apparent from the record that companies profit has increased in gross as well as net profit despite non-increase of sales price and CVD increased rates as applicable which is sufficiently to indicate that they have passed on the incidence of duty to the buyers and as such there is no infirmity in the order of the original adjudicating authority while ordering the credit of partial refund amount into Consumer Welfare Fund. Finally submitting that stereo type Chartered Accountant Certificate cannot be the sufficient evidence for assessee to discharge its burden as was hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd hold as follows:- 1. The only question that remains in these appeals is whether the assessee has passed on the tax burden to his buyers or not i.e. whether assessee got unjust enriched. 2. and whether the original adjudicating authority was right in holding that the refunded amount, part thereof, is liable to be deposited to the Consumer Welfare Fund. Apparently and admittedly all the relevant documents were made good the deficiency by the assessee-respondent as were sufficient to sanction the refund. Partial amount of claim was rejected only on the ground that Balance-sheet was not showing the accountable of the amount of impugned Bill of Entry. This issue stands already decided even prior SRF decision in the case of M/s. Yu Televentures Pvt. Ltd. in Writ Petition No.2102/2017. The relevant portion is reproduced below:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above) was upheld by the Apex Court by dismissing the SLP filed by the Revenue by an Order dated 06.02.2017. 10. We find that Hon ble High Court of Delhi again had an occasion to consider identical issue as the one in these appeals i.e in the case of Vishal Video and Appliances Ltd., in writ petition No. 7851/2016. The said writ petition was allowed in favour of the petitioner (assessee) 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 thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cates and other evidence produced by the appellants for proving that the incidence of duty had not been passed on by them, to the consumers. 18.It is well settled that the incidence of duty cannot be said to have been passed on by the consumers, if the sale price of the goods had remained the same before and after payment of duty by the assessee. In this context, reference may be made to, Commissioner of Central Excise, Kanpur v. Corona Cosmetics Chemicals (P) Ltd. - 2000 (118) E.L.T. 356 (T) and Commissioner of Central Excise v. Minerva Mills - 2002 (141) E.L.T. 177, wherein it has been so ruled by the Tribunal. The Revenue had not produced any evidence to contradict the documentary evidence produced by the appellants referred to above. Therefore, the un-rebutted evidence of the appellants that their selling price of the final product was not influenced by payment of duty on the inputs during the period in question and that the price remained the same or even on certain occasions stood reduced, deserves to be accepted. From all this evidence brought on record, it stands amply proved that the incidence of duty had not been passed on by the appellants to the buyers/consumers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mponent. (v) (b) The assessee also produced certificate from the different buyers of its goods to the effect that the buyers had not recovered the duty for sale of assessee s finished goods. In addition thereto, the certificate issued by the Chartered Accountant who had audited the accounts including the accounts for the period from 1-8-1982 to 31-12-1986, it was established that the Central Excise duty from the buyers of the finished goods were no collected, there was no passing over of the duty to the consumers and there was no unjust enrichment. 14. We, accordingly, hold that: When assessees invoice showed a composite price and duty was not indicated separately and the sale price of the goods before as well as after the reclassification, revaluation etc. remained the same, it can be concluded that the incidence of duty was not passed on to the consumer. Merely because the Excise duty is booked as expenditure in Profit Loss account, it cannot be said the incidence of duty has been passed on. 15. In the case of Mohan Sales (India), [2003 (158) E.L.T 667 (T)] the Tribunal set aside the finding of unjust enrichment and also the direction of crediting the same to wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue as to whether C.A. Certificate is not sufficient to rebut the aforesaid presumption, we rely upon the decision of Eastern Shipping Agency vs. Commr. of Service Tax, Ahmedabad reported in 2013 (32) S.T.R. 630 (Tri. Ahmd.) which followed decision of Hon ble High Court of Gujarat in the case of Mangal Textile Mills Pvt. Ltd. - 2004 (171) E.L.T. 160 (Guj.), that since the Chartered Accountant s certificate is not countered by Revenue authorities by any other certificate same has to be considered. Also in the case of H.L. Papers Ltd. - 2010 (18) S.T.R. 481 (Tri.-Del.), it was held that the burden is on the Department to disprove the Chartered Accountant s certificate. 19. Further Tribunal Ahmedabad held in Commissioner of Central Excise, Surat-II vs. Binakia Synthetics Ltd. reported in 2013 (294) E.L.T. 156 (Tri. Admd.) that: Merely because the said certificate does not give the details of costing etc., will not turn it into a bad certificate. 20. In view of above discussion, we hold that the mere fact that the amount of differential CVD is shown as recoverable in profit and loss account is, in itself, not sufficient to prove that burden thereof has been pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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