TMI Blog2023 (6) TMI 1060X X X X Extracts X X X X X X X X Extracts X X X X ..... petition filed under Article 226 of the Constitution of India, have held that if there is an error in the B/Es, the same can be rectified by amendment in terms of Section 149 of the Customs Act, 1962. In the case in hand, the B/Es were re-assessed by the department pursuant to the applications filed by the appellant under Sections 149 ibid and 154 ibid. In the present case, the facts are not under dispute that the original orders dated 06.04.2019 and 26.02.2019 passed by the adjudicating authority in sanctioning the refunds in favour of the appellants were not challenged by Revenue before the Commissioner (Appeals). Therefore, with regard to those two adjudication orders, the matter has attained finality and the question of maintainability of the refund claims cannot be questioned by Revenue at a subsequent stage, by initiating proceedings under Section 28 ibid, for recovery of the refund amounts, considering the same as erroneous refund - under such circumstances, it cannot also be said that the grant of refund is erroneous and the same should be recovered by taking recourse to Section 28 ibid. Therefore, the impugned order, confirming the demand along with interest against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remand to the Original authority only for the limited purpose of examination of the applicability of doctrine of unjust enrichment - Appeal allowed by way of remand. - Customs Appeal No. 86359 Of 2021 - FINAL ORDER NO. A/85977/2023 - Dated:- 20-6-2023 - HON BLE MR. S. K. MOHANTY , MEMBER ( JUDICIAL ) And HON BLE MR. M. M. PARTHIBAN , MEMBER ( TECHNICAL ) Shri T. Vishwanathan along with Ms Srinidhi Ganeshan, Advocates for the Appellant Shri Ashwini Kumar, Authorized Representative for the Respondent ORDER PER : S. K. MOHANTY Briefly stated, the facts of the case are that during the period 17.02.2014 to 24.04.2015, the appellant had imported Mobile phones , falling under CTH 851712 90. At the time of import, the appellants have paid Additional Duty of Customs (CVD) at the rate of 6% (upto 28.02.2015) and at the rate of 12.5% on imports effected from 01.03.2015 onwards. Notification No. 12/2012-C.E. dated 17.03.2012 provided exemption to various goods from the levy of Central Excise duty. In terms of entry at Sl. No. 263A of the said notification, a manufacturer was given an option to pay excise duty at the rate of 1% on mobile phones, subject to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by the proper officer, the appellants have filed the refund applications on 11.10.2018, 25.06.2019 and 11.10.2018, claiming refund of Rs.3,84,08,541/-, Rs.4,73,50,179/- and Rs.10,35,46,702/- respectively. The refund applications filed by the appellants were favourably considered by the refund sanctioning authority and vide Orders-in-Original 16.04.2019, 03.08.2019 and 26.02.2019, the said amounts of refund claims were sanctioned in favour of the appellants. 1.5. Out of the above original orders, the jurisdictional Commissioner of Customs has accepted the refund claim sanctioned by the original authority in respect of Order dated 16.04.2019. With regard to the order dated 03.08.2019, the reviewing authority has directed the original authority for filing of appeal before the Commissioner (Appeals) and accordingly the appeal was filed by Revenue against the adjudication order dated 03.08.2019. As regards the adjudication order dated 26.02.2019 is concerned, no review order was passed by competent authority and as such, no appeal was preferred against the said order. 1.6. Subsequent to sanction of refund amounts in favour of the appellants, the department had issued three n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate has also referred to order 02.11.2021 passed by this Tribunal in the appellant s own case, to state that since the refund application was filed pursuant to the reassessment done by the department, such application is permissible under the law. Finally, the learned Advocate has prayed for setting aside the impugned order passed by the adjudicating authority. 2.2. With regard to applicability of the doctrine of unjust enrichment, learned Advocate submitted that the incidence of excess paid CVD amount has been borne by the appellants and such incidence has not been passed on to any other person. To strengthen such stand, learned Advocate has submitted photo copy of the balance sheet for the disputed period. 3. Shri Ashwini Kumar, learned Authorised Representative appearing for Revenue while reiterating the findings of the Commissioner in the impugned order, has further stated that the appellant s executive pursuant to summon issued for recording the evidence in the form of voluntary statement under Section 108 ibid, in connection with the investigation has stated that the amount of refunds in question was treated as expenses in the Profit Loss account (P L account) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner (Appeals). Therefore, with regard to those two adjudication orders, the matter has attained finality and the question of maintainability of the refund claims cannot be questioned by Revenue at a subsequent stage, by initiating proceedings under Section 28 ibid, for recovery of the refund amounts, considering the same as erroneous refunds. Further, in respect of the refund sanctioning order dated 03.08.2019, though Revenue s appeal was allowed by the learned Commissioner (Appeals)vide Order-in-Appeal dated 22.03.2021, but the said order was set aside and the appeal was allowed with consequential relief by the Tribunal vide Final Order No. A/87098/2021 dated 02.11.2021. In this case, nothing is available on record to show that the said order of the Tribunal has been set aside or overruled by the higher Appellate forums. Thus, under such circumstances, it cannot also be said that the grant of refund is erroneous and the same should be recovered by taking recourse to Section 28 ibid. Therefore, the impugned order, confirming the demand along with interest against the appellants under Section 28(1) ibid, read with Section 28(4) ibid, and Section 28AA cannot be sustained. Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion particulars in the financial records. If the expenses incurred on account of duties/taxes is entered in the P L account, then under such circumstances, it can be said that the incidence of such duties/taxes have been passed on and not been borne by the assessee/importer concerned. In other words, any amounts which are debited to the P L account, the same represents utility of that expenditure providing the respective benefit in that year and it relates to generation of the income for that respective year. Thus, any amount debited to the P L account has to be resulted in generation of revenue and accordingly, there lies no claim for recovery of this amount. On the other hand, without considering the same as expenses in the P L account, if the same is reflected in the Balance Sheet as Claims Receivable under the head Current Assets: Loans and Advances , then it has to be construed that the incidence of the duties/taxes have not been passed on to any other person and the incidence of the same has been borne by the assessee/importer. Under such circumstances only, the benefit of refunds should accrue to the person who has paid such duty/tax to the Government exchequer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is a contradiction in the stand taken regarding applicability of the doctrine of unjust enrichment. Since, such aspect has to be looked into in great detail, we are of the considered view that the matter should go back to the original authority for proper analysis of the books of accounts maintained by the appellants for a conclusion, as to whether the incidence of excess paid duty (claimed as refund) has been borne by the importer-appellants or transferred/passed on to any other person. The Original authority should more particularly focus on the findings recorded in the impugned order at paragraphs 77(i) and 77(iii) for his satisfaction, and for ascertaining under what circumstances the expenses on account of CVD was reflected in the P L account and what further entry/entries were made in nullifying such entry subsequently, in order to reflect such particular refund amount in the Balance Sheet under the head Current Assets: Loans and Advances . The Original authority should also examine the issue, about the date when the contra entry, if any, was passed in the Journal/Ledger account in nullifying the transaction subsequently, as claimed by the learned Advocate for the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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