2024 (10) TMI 1138 - AT - Customs

Refund claim allowed for excess additional customs duty worth Rs. 5.76 crore based on chartered accountant certificates

M/s. Nokia India Sales Pvt. Ltd. Versus Commissioner of Customs, New Delhi

CESTAT New Delhi allowed appellant's refund claim for excess additional customs duty totaling Rs. 3,43,88,087/- and Rs. 2,33,05,108/-. The Tribunal ... Refund of the excess additional duty of customs - refund claims are hit by time limitation or not - prove beyond doubt that the incidence of duty has not been passed on to the buyers - HELD THAT:- It is seen that the same chartered accountant issued three identical certificates, each dated 29.12.2015, to the appellant in respect of the import of the same goods at about the same time from Delhi, Ahemdabad and Hyderabad. The Hyderabad Bench of the Tribunal accepted this certificate and held that the burden of duty had not passed on to the buyers. This order of the Hyderabad Bench has attained finality. An identical chartered accountant certificate dated 29.12.2015 also came up for consideration before the Ahemdabad Bench of the Tribunal. The Tribunal remanded the matter to the Deputy Commissioner to examine the issue afresh. The Deputy Commissioner, on remand, after carefully examining the said chartered accountant certificate dated 29.12.2015, held that the incidence of duty had not passed on to the buyers. This order passed by the Deputy Commissioner has also attained finality. It is not possible to accept the contention raised by the learned authorized representatives appearing for the department that the certificate of the chartered accountant produced by the appellant to substantiate the incidence of duty had not passed on to the buyers should not be accepted because the appellant did not produce any other corroborative evidence as required under sections 28C and 28D of the Customs Act. The orders dated 05.09.2019 and 26.09.2019 passed by the Commissioner (Appeals) confirming the order passed by the Deputy Commissioner for deposit of the sanctioned amount in the Consumer Welfare Fund under section 27(2) of the Customs Act, therefore, deserve to be set aside and are set aside - The appellant is held entitled to the payment of amount of Rs. 3,43,88,087/- and Rs. 2,33,05,108/- with consequential relief(s) - Appeal allowed. Issues Involved:1. Whether the delay in filing the Cross-Objections by the department should be condoned.2. Whether the Cross-Objections filed by the department were in accordance with the prescribed procedure.3. Whether the refund applications filed by the appellant were maintainable without getting the assessment orders modified.4. Whether the sanctioned refund amounts should be credited to the Consumer Welfare Fund due to the doctrine of unjust enrichment.Detailed Analysis:Issue 1: Delay in Filing Cross-ObjectionsThe department filed Cross-Objections with a delay of 977 days, which were contested by the appellant. The Tribunal rejected the delay condonation applications, leading to the dismissal of the Cross-Objections. The Tribunal found that the notice of appeal was served on the department, and the explanation provided for the delay was insufficient. The Delhi High Court upheld this decision, stating that no substantial question of law arose, and the appeal was dismissed.Issue 2: Procedural Compliance of Cross-ObjectionsThe appellant argued that the Cross-Objections were not filed in accordance with the Customs, Excise, and Service Tax Appellate Tribunal (Procedure) Rules, 1982. The Tribunal agreed, leading to the rejection of the Cross-Objections. This procedural aspect was not further contested by the department, and the decision was upheld by the Delhi High Court.Issue 3: Maintainability of Refund ApplicationsThe department contended that the refund applications were not maintainable without modifying the assessment orders, relying on the Supreme Court's decision in ITC Ltd. However, the Tribunal noted that the department had not appealed the Deputy Commissioner's order sanctioning the refund, allowing it to attain finality. The Tribunal held that the department could not raise this issue in the appellant's appeal, as it was not the subject matter of the current proceedings. The Tribunal cited precedents where issues that had attained finality could not be reopened in subsequent proceedings.Issue 4: Doctrine of Unjust EnrichmentThe core issue was whether the incidence of duty had been passed on to the buyers, which would necessitate the refund being credited to the Consumer Welfare Fund under section 27(2) of the Customs Act. The appellant relied on a chartered accountant's certificate to demonstrate that the duty incidence was not passed on. The Tribunal found that similar certificates had been accepted in other jurisdictions (Hyderabad and Ahmedabad) and had attained finality. The Tribunal held that the department could not contest the certificate's validity in this appeal, as it had not challenged similar findings in other cases. Consequently, the Tribunal set aside the orders directing the refund amounts to be credited to the Consumer Welfare Fund and allowed the appeals, entitling the appellant to the refund amounts with consequential reliefs.