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TMI Blog2025 (3) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... 35.89 2. The Revenue has filed appeal no. C/51109/2019 assailing the Order-in-Appeal no. CC(A)Cus/D-I/ACC-Import/Refund/NCH/664/2018-19 dated 11.02.2019 wherein the Commissioner has held that the appellants are entitled for refund of Rs.18.38 cores and remanded the case back to adjudicating authority with a direction to pass fresh order on the basis of CA certificate and other documents. The Revenue has also filed appeal no. C/51110/2019 assailing the Order-in-Appeal no. CC(A)Cus/D-I/ACC-Import/Refund/NCH/666/2018-19 dated 11.02.2019 wherein the Commissioner has held that the appellants are entitled for refund of Rs.35.89 cores and remanded the case back to adjudicating authority with a direction to pass fresh order on the basis of CA certificate and other documents. 3. M/s Micromax Informatics Ltd has filed appeal no. C/50824/2024 assailing the Order-in-Appeal no CC(A)Cus/D-I/Import/NCH/5130/2023-24 dated 01.03.2024 wherein the ld. Commissioner has allowed the Departmental appeal and set aside the impugned Order-in-Original No. 101/VP/2019 dated 27.06.2019. M/s Micromax Informatics Ltd have also filed appeal No C/50825/2024 assailing the Order-in-Appeal no CC(A)Cus/D-I/Import/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AC (Refund) passed the OIO no. 1454/PS/2016 dated 29.08.2016 sanctioned the refund of Rs.18.38 Crores but Credited to Consumer Welfare Fund as refund claim was hit by Doctrine of unjust enrichment. 11.02.2019 Against the OiO dated 29.08.2016, the party filed appeal on 03.11.2016 with Commissioner (Appeal) and the Commissioner (Appeal) passed OIA no. 664/2019 dated 11.02.2019. The Commissioner has held that the appellants are entitled for refund of Rs.18.38 cores and remanded the case back to adjudicating authority with a direction to pass fresh order on the basis of CA certificate and other documents. 16.05.2019 Department filed appeal no. C/51109/2019-Cus (DB) against OIA no. 664/2019 dated 11.02.2019. 24.06.2019 On the basis of OiA dated 11.02.2019, the refund of Rs.18.38 crores was sanctioned by AC (Refund) vide OIO no. 101/VP/2019 dt. 24.06.2019 Subject to outcome of departmental appeals in (a) Hon'ble Supreme Court SLP No. 31561/2017 filed against Delhi High Court order dated 26.07.2017 in the case of YU Televentures in WP No. 2102/2017 and (b) departmental appeal C/51109/2019 filed in CESTAT against OiA dated 11.02.2019 18.09.2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Supreme Court judgement in the matter of SRF Ltd, 2015 (318) ELT, 607 (SC) 31.07.2015 Consequent to above judgement, appellant filed consolidated refund application on the basis of claim of Additional Duty of Customs @ 1% or 2%. S. No. 263A of Notification No.12/2012 dated 17.03.2012 r.w. amendments and S. NO. 132 of Notification no. 01/2011 CE dated 01.03.2011 as amended. 14.01.2016 OIO no 2195/SK/2015 dt 14.01.2016:- Refund for Rs.35.89 crores was rejected by relying upon M/s Priya Blue Industries Ltd. Vs. Commissioner [2004(170)ELT A 308(SC)] as the Bs/E were not reassessed. 04.04.2016 Against the aforesaid refund rejection order, the party filed WP No. 2802/2016 before Hon'ble Delhi High Court for the imports during the period from July to August, 2014. The Delhi High Court passed order dated 04.04.2016 restoring the refund application to the Assistant Commissioner (Refund) for fresh decision on merits in light of the Delhi High Court order dated 26.02.2016 against WP(C) No. 523/2016. July 2016 Department filed SLP 26530/2016 in Supreme court challenging the Delhi HC Order dt 04.04.2016 26.08.2016 The AC (Ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) OIO 14-02-2019: Against the OiO dated 29.08.2016, the party filed appeal on 03.11.2016 with Commissioner (Appeal) and the Commissioner (Appeal) passed OIA no. 666/2019 dated 14.02.2019. d) DEPARTMENTAL APPEAL: Department filed appeal no. C/51110/2019-Cus (DB) against OIA no. 666/2019 dated 14.02.2019 e) OIO dt. 24.06.2019-On the basis of OIA dated 11.02.2019, the refund of Rs.35.89 crores was sanctioned by AC (Refund) vide OIO no. 102/VP/2019 dated 24.06.2019 f) OIA dt.01-03-2024: On departmental appeal against the Allowed the Departmental appeal and set aside the impugned OIO no. 102/VP/2019 g) PARTY APPEAL: Party filed appeal No. C/50825/2024 before CESTAT. 7. Learned counsel for the appellant with respect to the Departmental appeals C/51109/2019 and C/51110/2019 submitted as follows: A. PRESUMPTION OF BURDEN DISCHARGED BY RESPONDENT ASSESSEE: It was submitted that the presumption or burden cast upon the Respondent Assessee under Section 28D of the Customs Act, 1962 had been duly discharged and refund claim is not hit by the bar of unjust enrichment. B. THE ISSUE IS NO LONGER RES-INTEGRA: It was submitted that the question of Unjust Enrichment is no longer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per Law of Comity, only the proper officer who has done the assessment or verification of Assessment (in case of self-assessed Bs/E) can only do the re-assessment. c) Requirement of Re-assessment before refund: The judgment in ITC Ltd. v. CCE Kolkata [2019 (368) ELT 216] (henceforth referred as "ITC Judgement")reinforces the stance that processing of a refund application cannot be done without reassessment. The Hon'ble Supreme Court in ITC judgement has stated that self assessment done by the importer is also an assessment. If the importer himself is aggrieved of such self assessment done by him then he should have filed an appeal u/s 128(1) with Commissioner (Appeals) within 60 days. 10. We have heard Ms. Malvika Kapila Kalra and Ms. Tanwangi Shukla, learned Counsels for M/s Micromax Informatics Ltd as the appellant in party appeals and as the Respondents in Departmental appeals (here in after referred as "Micromax") and Shri S.K. Rahman, learned Authorized Representative for the Revenue and perused the records. 11. Having heard both sides, the issues before us are as follows: (A) Departmental appeals: i. Whether the Order-in-Appeal no. CC(A)Cus/D-I/ACC-Import/Refund/N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Self-Assessment Scheme under Section 17 of the Act and were thus finally assessed. This Court in M/s. SRF v. Commissioner of Customs, Chennai - 2015 (318) E.L.T. 607 (S.C.) held that for quantification of CVD in case of an article that has been imported, it has to be presumed that the said imported article has been manufactured in India and then the amount of excise duty leviable thereon has to be ascertained for determining the extent of exemption from payment of CVD to which the importer would be entitled. The respondent had filed the refund claim of Rs. 35.89 crores for duty totally paid under the self-assessed bills of entry, under Section 27 of the 1962 Act in the Air Cargo Export Commissionerate, claiming a refund of the Additional Customs Duty (CVD) in view of Serial Number 263 A and Condition No. 16 of Notification No. 12/2002-Ex., dated 17-3-2012 and for the said Condition No. 16, mobile handsets were chargeable to a duty of 1% if no Cenvat credit had been availed by the importer. The Micromax claimed that they had made excess payment while complying with the Condition No. 16 of the aforesaid notification. They claimed the refund of deferential duty of 5%. The Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable as held by this Court in Priya Blue Industries Ltd. (supra) 47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act." (emphasis supplied) 14. From the above, it is noted that para 12 of the ITC judgement pertains to the case of Micromax Informatics viz, the appellant. We proceed to overview the orders passed in the instant appeals and then discuss its status hereinafter. The adjudicating authority passed OIO no 2304/SK/2015 dated 19.01.2016 wherein refund for Rs.18.38 crores was rejected by relying upon M/s Priya Blue Industries Ltd. Vs. Commissioner [2004(170)ELT A 308(SC)] as the Bs/E were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OIAs namely OIO no. 101/VP/2019 dated 27.06.2019 and OIO no. 102/VP/2019 dated 27.06.2019 also became null and void. The Department filed appeals against OIO 101/VP/2019 dated 27.06.2019 and OIO no. 102/VP/2019 dated 27.06.2019. The Commissioner (Appeals) passed OIA No CC(A)/Cus/D-I/Import/NCH/5130/2023-24 dated 01.03.2024 and OIA No CC(A)/Cus/D-I/Import/NCH/5129/2023-24 dated 01.03.2024. Once OIO no. 101/VP/2019 dated 27.06.2019 and OIO no. 102/VP/2019 dated 27.06.2019 have become null and void, both the Commissioner (Appeals) OIAs dated 01.03.2024 are thus infructuous. Consequently, the appellant's appeal No's. C/58024/2024 and C/58025/2024 are liable to be rejected. 17. Irrespective of all the above, we proceed to examine the appeals on merits. We take note of paras 44-47 of the ITC Judgement wherein the term "assessment" was defined: "2(2) "assessment" means determination of the dutiability of any goods and the amount of duty, tax, cess or any other sum so payable, if any, under this Act or under the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as the Customs Tariff Act) or under any other law for the time being in force, with reference to- (a) .....; ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions of exemption can be adjudicated". 21. The Refund Application is filled with the proper officer for refund i.e. Assistant Commissioner (Refund), who can only process the refund claim. The said para 44 of ITC judgement clearly says that "It will virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27". As per Law of Comity, only the proper officer who has done the assessment or verification of Assessment (in case of self-assessed Bills of Entry) can only do the re-assessment. 22. Consequent to the above discussions, we are of the considered view that Micromax should have first opted for re assessment of the Bills of Entries, and only then they should have filed refund application. Having missed the prescribed time lines, we hold that Micromax is not eligible for the refund of Rs18.38 Cr & Rs 35.89 Cr as claimed by them . 23. The Hon'ble Supreme Court in Mafatlal Industries Ltd. Versus Union of India [1997 (89) E.L.T. 247 (S.C.) [19-12-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-assessment of Bill of Entry is mandatory before filing refund. The Revenue was permitted to implead these additional ground on the basis of Supreme court decision in the case of ITC, which was permitted vide Misc Order 50175-176/2023 dated 03.07.2023. Therefore, it is not the case that Micromax was not aware that re-assessment of Bill of Entry was mandatory before filing the refund claims. 26. The said benefit was not availed by the appellant at the time of filing of Bills of Entry under the belief that they do not fulfill the condition as the goods were imported and not manufactured in India and filed the self-assessed Bills of Entry claiming 6% ad valorem. This is evident from the fact that they had not paid duty under protest. However, without seeking re-assessment or filing an appeal, mere filing of refund claim cannot be entertained, as laid down by the Hon'ble Supreme Court in ITC judgment (supra). 27. The learned Authorized Representative has relied upon Final Order No. 55859-55891/2024 dated 04.06.2024 in the case of Vishal Video and Appliances Pvt Ltd Vs Commissioner of Customs Acc (Import), New Customs House New Delhi 2024-TIOL-528-CESTAT-DEL on the issue of recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in Book of Accounts and Annual Balance Sheet for FY 2014-15 due to "Principle of conservation". As the Departmental appeal was pending at that time of passing of the said OIAs dated 11.02.2019, the Commissioner (Appeal) could have awaited the disposal of Departmental Appeal or decide both together, which is not the case. The Bills of Entry for importing mobile phone handsets of CTH 8517 indicated MRP of the Mobile set. Two MRPs was not affixed on the product when it was sold. The amount recovered from the Customers was as per MRP. However, we are of the view that to now extend the benefit of Additional Duty of Customs @ 1%. (S. No. 263A of Notification No.12/2012 dated 17.03.2012 read with amendments and S. NO. 132 of Notification no. 01/2011 CE dated 01.03.2011 as amended), consequent to the clearance and sale of the goods would result in unjust enrichment. 31. We also note that the impugned goods were sold after importation prior to the delivery of the SRF judgement. We do not think that there is any mechanism to make entry in the Books of account at a later stage, when the said decision itself was not pronounced. The concept of unjust enrichment, is the retention of a benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to reopen it nor can he claim refund without re-opening such assessment/order on the ground of a decision in another person's case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well established principles of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963, has no application to such a claim for refund." (emphasis supplied) 33.1. Para 71 of the judgement says as follows: "71. Re.: (III) : For the purpose of this discussion, we take the situation arising from the declaration of invalidity of a provision of the Act under which duty has been paid or collected, as the basis, inasmuch as that is the only situation surviving in view of our holding on (I) and (II). In such cases, the claim for refund is maintainable by virtue of the declaration contained in Article 265 as also under Section 72 of the Contract Act as explained hereinbefore, subject to one exception : where a person approaches the High Court or Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Department has filed appeals against these two OIOs. The Commissioner (Appeal) vide OIAs dated 01-03-2024, allowed the Departmental appeal and set aside the impugned two OIOs dated 27.06.2019. The party Micromax have filed two appeals viz., C/50824/2024 and C/50824/2024 against OIAs dated 01-03-2024. In view of our discussions above that the refund sanctioned itself is not sustainable, the appeals No's. C/50824/2024 and C/50824/2024 against OIAs dated 01-03-2024 are also not sustainable. Thus, the appeals No's. C/50824/2024 and C/50824/2024 are liable to be dismissed. 36. The AC (Refund) vide two OIOs dated 29.08.2019 has sanctioned the refund of Rs.18.38 crores and Rs. 35.89 crores, on the basis of OiA dated 11.02.2019 subject to outcome of departmental appeals in (a) Hon'ble Supreme Court SLP No. 31561/2017 filed against Delhi High Court order dated 26.07.2017 in the case of YU Televentures in WP No. 2102/2017 and (b) departmental appeal C/51109/2019 and C/51110/2019 filed in CESTAT against OiA dated 11.02.2019. Thus, it was a conditional sanction of Refund. The departmental appeals in Supreme Court (including Micromax, YU Televentures etc) are merged with many other a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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