TMI Blog2023 (9) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... cause the sale price before as well as after the reassessment remained the same. The sale invoices produced by the appellants have rightly been considered. Once those were produced, the onus stands shifted upon the department to falsify those documents but there is no other document produced by the department. The findings of original adjudicating authority are therefore rightly held to be presumptive in nature in para 5.11 of the impugned order. In the light of documents and respective discussion, we find no reason to differ with the findings of Commissioner (Appeals). We also support the observation of Commissioner (Appeals) that Chartered Accountant s/Auditor s certificate has wrongly been ignored by the original adjudicating authority. Reliance placed upon the decision of Hon ble High Court of Delhi in the case of YU TELEVENTURES PVT. LTD. VERSUS UNION OF INDIA OTHERS [ 2017 (8) TMI 12 - DELHI HIGH COURT] , Wherein it was held that once the Chartered Accountant s certificate certifies that the incidence of CVD duty on import was not passed on to customers, it is sufficient to rebut the presumption of unjust enrichment. Though the department has laid emphasis upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Original 14.08.2015 September 2014 22,48,35,292/- 2846/DS/2016 dated 23.01.2017 17.09.2015 October 2014 33,91,47,955/- 2845/DS/2016 dated 23.01.2017 17.09.2015 November 2014 to January 2015 68,11,45,947/- 2844/VKJ/2016 Dated 23.01.2017 27.10.2015 February 2015 and March 2015 50,15,32,437/- 2847/RK/2016 dated 23.01.2017 30.06.2015 June 2014 to March 2015 28,48,22,600/- 234/2016 dated 23.01.2017 3. We further observe that no action initially was taken on those application, where after the appellant filed a Writ Petition No. 11958/2016 before the Hon ble High Court of Delhi. The interim directions were given to the department vide interim order dated 21.12.2016 to process the refund claims which were the subject matter of the said writ petition and to pass the orders therein to be followed by release of additional duty. The matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence brought on record by M/s. Micromax Informatics Limited, Commissioner (Appeals) has wrongly held that the burden of impugned duty was not passed on by the assessee. The onus to prove that the refund amount has not been recovered from the buyers is always on the claimant. In the present case, claimant M/s. Micromax Informatics Limited has actually failed to discharge the said onus. Hence, the sanction of refund and disbursement thereof to M/s. Micromax Informatics Limited is a wrong order. He relied upon the decision of Hon ble Supreme Court in the case of Mafatlal Industries Limited Vs. Union of India reported as 1997 (89) ELT 247 (SC). 5.1 It is further submitted that amount of refund claim in the form of CVD was already treated as cost/expenses. Accordingly, it was debited to profit and loss account for the Financial year 201415 which implies that the burden of customs duty was passed on to the buyer of the goods imported. Commissioner (Appeals) is alleged to have ignored this important fact. The decision of this Tribunal in the case of M/s. Aamby Valley City Developers Ltd. Vs. Commissioner of Central Excise, Pune-I reported as 2021 (55) GSTL 43 (Tri.-Mum) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, there is no infirmity. 6.1 Learned counsel further submitted that no doubt during the pendency of these proceedings there has been another decision of Hon ble Supreme Court in the case of ITC Ltd. Vs. Commissioner of Central Excise, Kolkata-IV reported as 2019 (368) E.L.T. 216 (S.C.), wherein it has been held that a claim of refund could not be entertained unless the order of assessment or self-assessment was modified in accordance with law by taking recourse to appropriate proceedings. Pursuant thereto M/s. Micromax Informatics Limited filed reassessment applications under Section 17(5) of the Customs Act, 1962 with respect to the relevant Bills of Entry on 26.02.2020. Though the reassessment request was initially rejected vide order dated 09.12.2021. However, Commissioner (Appeals) vide order dated 25.02.2022 has allowed the appeal for reassessment and it is thereafter that the present Commissioner (Appeals) has filed the impugned order. Hence, there is no apparent reason to falsify the said order. Appeals are accordingly prayed to be dismissed. 7. Having heard both the parties at length. We observe and hold as follows: Despite several stages of litigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence of duty has infact, been passed onto the buyers because the sale price before as well as after the reassessment remained the same. We draw our support from the decision of Hon ble Gujarat High Court in the case of Ashish Metal Rolling Mills Vs. Commissioner of Central Excise, Ahemdabad-I reported as 2014 (305) E.L.T. 510 (Guj.). 9. We observe from the order under challenge that the Commissioner (Appeals) has held the ground false based whereupon the refund was sanctioned to Consumer Welfare Fund that the amount of refund claims were not been recognized as assets and thus were held to have formed the part of cost of products. He observed that Chartered Accountant s Certificate was also not accepted by original authority. The Commissioner (Appeals) rather appreciated the notes on the Balance Sheet. Note no. 47 of the statutory Auditor s Report in the balance sheet for the year 2014-15 and Note no. 44 in the Balance Sheet for the Financial year 2015-16 has duly been considered by the Commissioner (Appeals) and it has been concluded that merely because the excess CVD stood charged as expenditure, it does not lead to inevitable conclusion that burden has been passed to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Chartered Accountant s Certificate which is issued after the analysis of final records of the assessee, once certify that the incidence of duty has not been passed on to the buyers, the same cannot be rejected unless the department provides relevant documents and necessary reasoning justifying the rejection. As observed by Commissioner (Appeals), we also do not find any such document nor any such reasoning on record. Even Board s Circular No. 18/2010 dated 08.07.2010 instructed the departmental authorities to accept the Chartered Accountant s certificate for the purpose satisfying the condition that the burden of CVD has not been passed on by an importer to any other person. 10. Though the department has laid emphasis upon the decision of Hon ble Apex Court in Mafatlal Supra case but we observe that Hon ble Apex Court has laid down that the person claiming refund or restitute has to establish loss or injury to him i.e. if person claiming refund has passed on the burden of duty to another and has not really suffered any loss or injury, question of reimbursing him does not arise. He even cannot successfully sustain an action of restitution even under Section 72 of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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