AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 12
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....tioner states that on these B/Es it paid the CVD at a higher rate even though it was eligible to pay duty at a lower rate in terms of Notification No. 12/2012-CE dated 17th March, 2012 as amended by Notification No. 4/2014 and as further amended by Notification No. 12/2015-CE dated 1st March, 2015. The concessional rate of duty for mobile phones was available provided that no CENVAT credit on inputs or capital goods had been availed. Further, the Petitioner imported mobile back covers which were also eligible for a lower rate of duty at 2% in terms of Notification No. 1/2011-CE dated 1st March, 2011 as amended. This was also conditional upon the Petitioner not availing credit on inputs or input services. 3. It is not in dispute that in regard to the above imports the claim of the Petitioner for refund under Section 27 of the Customs Act, 1962 ('Act') is based on the decision of the Supreme Court in SRF Ltd. v. Commissioner of Customs, Chennai 2015 (318) ELT 607 (SC), which was delivered on 26th March, 2015. In that case, the Supreme Court interpreted a condition in Notification No. 6/2002 (which was similar to condition No. 16 of Notification No. 12/2012) regarding availment of co....
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.... 4th April, 2016, this Court allowed W.P.(C) No. 2802/2016 (Micromax Informatics Ltd. v. Union of India) relying on an earlier decision in Micromax Informatics Ltd. v. Union of India 2016 (335) ELT 446 (Del.). In the Special Leave Petition ('S.L.P.') filed by the Union of India against the said decision dated 4th April, 2016 in W.P.(C) No. 2802/2016, the Supreme Court declined to stay the said order but directed that the transfer of the amount to the Consumer Welfare Fund would not be given effect to. 8. On 15th July, 2016, the Supreme Court dismissed the review petition filed by the Department against the decision in SRF Ltd. v. Commissioner of Customs, Chennai (supra). 9. On 3rd August, 2016, the Court in the Petitioner's own case in W.P.(C) No. 6750/2016 (Yu Televentures Pvt. Ltd. v. Union of India) passed an order on 3rd August, 2016 relying on the decision in Micromax Informatics Ltd. v. Union of India (supra) holding that the Department could not refuse the refund only because an appeal had not been filed against the assessment order. The petition concerned the refund claim made by the Petitioner in respect of 10 B/Es filed in January and February, 2015. The Court directed ....
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....hat date. 14. In the instant case, a detailed reply was furnished by the Petitioner to the Respondent on 2nd December, 2016 referring to the abovementioned decision along with which a certificate that the duty burden had not been passed on by the company and a price summary of sample mobile phones showing that the prices remained the same despite increase in the rate of customs duty were submitted. It was pointed out that the Petitioner had imported the mobile phones on payment of CVD at 12.5% during the period in question and therefore there was no question of passing it on to the customers. Self-certified copies of sales invoices and a self-certified copy of the ledger in which the amount of refund had been accounted for as 'recoverable' was annexed with the reply. 15. On 22nd December, 2016 another memorandum was issued by the Respondent, once again asking the Petitioner to submit documentary evidence in respect of its refund claim. By a letter, dated 27th December, 2016, the Petitioner pointed out that it had already replied to a similar memorandum earlier and also submitted all the relevant documents. Another letter to the same effect was furnished on 3rd January, 2017. 16.....
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.... amount to the Petitioner's bank account through RTGS. However, no interest thereon had been granted. It is in the above circumstances that the present writ petition was filed in which notice was issued on 11th April, 2017. 19. Pursuant thereto, a counter affidavit has been filed by the Department in which a preliminary objection as to the maintainability of the petition is raised. It is contended that the matter involves pure questions of fact, capable of being properly resolved in the appellate remedies. On merits, it is contended that this Court had, in Micromax Informatics Ltd. v. Union of India (supra), directed the Respondents to process the refund and pass appropriate orders having regard to the CA certificate and that it had not directed to sanction the entire amount "based merely on the Chartered Accountant certificate." 20. The decision in Vishal Video & Appliances Pvt. Ltd. v. Union of India (supra) is sought to be distinguished on the ground that in the said decision the relevant part of the CA's certificate confirmed that the importer's books of accounts had been verified and the CA had been satisfied that the incidence of duty had not been passed on to the customer.....
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....5 to the customer was supported by proper documentation. 26. Here it is interesting to note that the Petitioner submitted the same CA certificate and documents (including sales invoices) for the aforementioned period as well as for the period June and July, 2015. Respondent No.4 has accepted these very documents for the claim in respect of June and July, 2015. Pertinently, Respondent No. 4 observes in respect of those invoices as under: "I find that the sales invoices of June 2015 and July 2015 produced by the importer do not reflect the CVD amount separately which, prima facie, indicate that the burden of SAD has not been passed on by the importer to their customers directly. Further, I have already taken note of the fact that the importer has submitted a Chartered Accountant's Certificate issued by M/s Nayyar Maniar & Associates LLP, M. No.502101, to the effect that certifying that the burden of CVD under this refund claim has not been passed on to the buyers and the refund being claimed is shown in their books of account/ Balance Sheet for the year ended 31 March 2016 as amount recoverable from the Customs. Accordingly, I hold that the provisions of unjust enrichment claus....