9911796707
TMI Blog2023 (3) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the Customs Tariff Act, 1975. The additional duty of customs is levied at rates applicable to similar goods manufactured in India as per the Central Excise Tariff. If there is any exemption notification under the central excise such notification also applies to the additional duty of customs. Notification No. 12/2012-CE dated 17.03.2012 as amended exempts mobile sets from excise duty in excess of 1% ad valorem subject to the condition that no Cenvat credit was availed on the inputs used in the manufacture of such goods. The respondent's claim of the exemption notification was denied by the appellant on the ground that the exemption notification will not apply to imported goods. The respondent paid the duty under protest. Later, the Supreme Court held in the case of SRF Limited Vs. Commissioner of Customs [2015 (318) ELT 607 (SC)] that the exemption notification will apply to additional duty of customs on imported goods also. 3. Thereupon, the respondent filed a refund claim on 24.06.2016 seeking refund of the excess additional duty of customs paid during the period 26.03.2015 to 22.06.2015 under 103 bills of entry. This application for refund was initially rejected by the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal. 5. Aggrieved, Revenue has filed this appeal praying that the impugned order may be set aside along with the order in original dated 14.11.2018 passed by the Assistant Commissioner. Two grounds have been raised in this appeal as follows: (i) Limitation (ii) Unjust enrichment. 6. It is asserted in the appeal that the refund was hit by limitation of one year as prescribed under Section 27(2) of the Customs Act as additional duty of customs was paid between 26.03.2015 to 22.06.2015 while refund application was filed on 24.06.2016. In other words, the application was filed beyond the period of one year and, therefore, was time-barred and should not have been sanctioned. 7. It has also been asserted that the Commissioner (Appeals) erred in holding that the refund claim does not attract the condition of unjust enrichment as the refund claimed is not duty as the importer themselves had filed application under Section 27 indicating the amount paid as duty. Reliance was also placed on the judgment of the Supreme Court in the case of ITC Limited Vs. Commissioner of Central Excise, Kolkatta-IV [2019 (368) ELT 216 (SC)] to assert that the duty paid as a result of the self-assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... else. The respondent also submitted a copy of the balance sheet for financial year 2015-16 wherein under assets is a head "customs duty refund receivable". These facts were recorded in paragraph 10 of the order which reads as follows: "10. Further w.r.t. the clause of unjust enrichment, I find that the party has submitted a self-declaration and a CA certificate from M/s Naveen Associates, M No. 541412 dated 18.01.2017 certifying that the amount, so deposited in excess, has not been passed on to the consumers or anyone. The party has also submitted a copy of the audited balance sheet for FY 2015-16, wherein the party has showed the amount as Assets under the head Custom Duty Refund Receivable. Hence the party has overcome the statutory obligation of unjust enrichment by not passing on the burden of the excess amount paid." 11. Before the Commissioner (Appeals), Revenue had contested the Chartered Accountant's certificate on the ground that M/s Naveen Associates who issued the certificate were not the statutory auditors of respondent which is recorded in paragraph 4 of the order as follows: "4. Response of the Respondent:- The Respondent was served a copy of the appeal filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere are two ways of treating the cost of the goods - either take the cost of the goods plus all taxes as the cost of the goods and then fix the sale price or take the cost of the goods and taxes but exclude such taxes and duties which are disputed and then decide the sale price. In the first case, the amount incurred as duty will be added to the cost of the goods which will be evident from the balance sheet. In the latter case, the amount paid as duty will not be added to the cost of the goods but it will be treated as "receivable from the Government" This is the latter case. In such a case, the cost of the duty has, evidently, not been passed on to the buyers. By examining what treatment was given to the disputed amount of duty or tax in the accounts, it can easily be verified whether it was passed on, either directly or indirectly, to the customers. In this case it has not been so passed. Learned special counsel for the Revenue vehemently argued that the Chartered Accountant's certificate cannot be relied upon. However, on a query from the Bench, he could not produce any document whatsoever to either establish the fact that duty has been passed on by the respondent or to show tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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