TMI Blog2024 (4) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be paid and the amount deposited and also held that the excess amount, if any, be refunded to the assessee after adjusting the penalty amount. The authorities below transferred the refund amount to the Consumer Welfare Fund observing that the appellant has not borne the burden of the duty themselves but passed on to Microsoft Corporation; also the amount has not been shown as receivable soon after payment of duty. Reading the agreement in its entirety, it is found that after the proceedings were initiated against the appellant, they have received certain amounts from the overseas suppliers of M/s. Microsoft Corporation to meet the requirement of payment of duty and interest, who advanced certain amounts with a condition that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Commissioner (PR), New Delhi. A show-cause notice was issued to the appellant on 3.11.2011 proposing to reject refund of Rs.2,18,91,298/- and thereafter, Corrigendum dated 6.1.2012 for Rs.3,18,91,298/- for calling for information and proposing to transfer the same to the consumer welfare fund alleging that the amount has been passed on to others and not borne by the appellant. On adjudication, the amount though sanctioned was transferred to the Consumer Welfare Fund. Aggrieved by the said order, appellant filed an appeal before the learned Commissioner (Appeals) who in turn rejected their appeal. Hence, the present appeal. 3. At the outset, the learned advocate for the appellant has submitted that the appellants are providing technology ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roper refund claim. He has submitted that though the amount sanctioned as refund was Rs.3,18,91,298/- and order to be credited to the Consumer Welfare Fund, in fact, the amount of refund which they claimed after adjustment of the penalty imposed on them during the settlement proceedings is Rs.2,18,91,298/- which they have been contesting in the present appeal. 3.1 The learned advocate has submitted that initially the amount had been deposited under protest and the excess payments made due to computation error by the department is an admitted and undisputed fact, hence, the amounts paid by the appellant over and above the settlement amount of duty and interest, after adjusting the penalty imposed, be refundable to them. He further submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporation. Further, the appellant has shown the excess amount as receivable from the department in its books of accounts as on 30.09.2012. In support, they relied on the Chartered Accountant s Certificate dated 07.11.2012 enclosed with the paper book. Further, they have submitted that in the Financial Year ending 31.03.2023, the amount of refund is shown as Rs.219 lakh as receivable from customs authority . 4. Learned AR for the Revenue reiterated the findings of the learned Commissioner (Appeals). Referring to the order of the Honourable Settlement Commission, the learned AR for the Revenue has submitted that the entire burden of duty and interest on Microsoft packaged software products imported into India was borne by M/s. Microsoft. As p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned as refund but transferred to Consumer Welfare Fund is correct or otherwise. 6.1 The facts not in dispute are that the appellants and other similarly situated noticees who purchased the software from M/s. Microsoft, approached the Settlement Commission against the case booked by DRI alleging undervaluation of the imported goods and consequently, short-payment of customs duty. The Settlement Commission after analysing the whole issue recorded its finding at para 78 and the settlement amount has been recorded against each of the parties. In the case of the appellant, the total amount of duty and interest settled was shown as Rs.61,48,08,638/- and interest of Rs.28,47,69,160/- (totalling to Rs.89,95,77,798/-). Also, it is specifically menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within 60 days from receiving such refund. Therefore, the amount was received from the Microsoft as an interim arrangement to meet their liquid cash flow and as per the said agreement, they are required to repay the excess amount to M/s. Microsoft. Also, after the Settlement Commission s order acknowledging the excess payment, the amount has been shown by them in their books of accounts as receivable . 7. On a careful analysis of the order of Settlement Commission and the Agreement dated 20.5.2009 between the appellant and the Microsoft Corporation, it is clear that the entire amount of duty and interest has been paid by the appellant after receiving certain amounts from M/s. Microsoft Corporation to meet the requirement of payment of duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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