TaxTMI 
TaxTMI 
2020 (2) TMI 1028
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....e duty burden to the consumers or end-users, such duty amount was deposited and paid into the consumer funds maintained under Section 12 (C) of the Central Excise Act, 1944, created for reserving such amount of duties, which are not admissible or not refunded back to the claimant, and amount of duty of customs referred to in Sub- section (2) of Section 27 or Sub-section (2) of Section 28-A or Sub-section (2) of Section 28-B of the Customs Act, 1962. 2. Facts in brief shorn of unnecessary details and required only for addressing the controversy in question deserve to be set out as under:- 2.1 The petitioner entered into a contract with a company named Messrs Tecno Export, Moscow, in 1986 for exploration of Hydrocarbon. The said contract dated 4.12.1986 was a turn key project for conducting seismic survey in North Cambay and Cambay Basins. The contract dated 19.12.1986 was for drilling of 26 numbers of exploratory wells in the North Cambay Basin. The contractor-Techno Export imported their equipment and material in sixteen consignments to Kandla Port, out of which five consignments were received in October 1986 and eleven consignments were received in February-March 1987. All t....
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....of 1962 or any other law of the country." (emphasis supplied) 2.3 The petitioner appears to have approached the authority under communication dated 16th August 2017 produced on the compilation at page 115 for seeking refund with interest, which were totalling to Rs. 22,44,88,330.71. The reminder was sent on 10th November 2017, which is also produced in compilation at page 117. The respondents sent communication on 21.11.2017 to the petitioner seeking clarification on discrepancy/deficiency which they noticed, for ready reference, the same deserve to be extracted and reproduced here verbatim. "Please refer to your refund claim application letter dated 16.08.2017 (received in this office on 21.08.2017) for Refund of, Customs duty of Rs. 5,41,82,641.08 & Interest of Rs. 17,03,05,689.63 (Total claim of Rs. 22,44,88,330.71). In this connection, it may be noted that during the scrutiny of your above claim, it is found that you have not complied with all procedural requirements prescribed and have also not submitted requisite documents leading to delay in processing of refund claims. The following discrepancies/deficiencies have been noticed; (1) The....
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....ithin 15 day on this account. (4) As regards to verification documents for availing Modvat/Cenvat credit or passing of duty elements to other persons, they said that their unit have not sold those goods covered in respective Bill of Entry and they have also not charged /recovered customs duty in invoice from buyer/ or passed on to any other firm/person. On this account they have already given C.A. Certificate. However, as regards to availing Modvat/Cenvat Credit on said duty by their unit, they explained that the matter is too old, hence they shall further comply within 15 days time." 2.5 On June 1, 2018 a communication is sent by the petitioner to the respondent reiterating the stand in respect to the refund. The custom authority sent letter on 16th July 2018 calling upon the petitioner to produce the documentary evidences to satisfy the authority that "unjust enrichment" is not likely to accrue to the petitioner on account of refund and interest amount. The following queries were made. Therefore, the communication dated 16.7.2018 deserve to be reproduced hereunder:- "Sub :Application dated 16.08.2017 for Refund claim of Customs Duty & Interest thereof; Total ....
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....r. (B) The Hon'ble Court be pleased to pass such and further orders as may be deemed just and proper." 2. Learned advocate for the respondent submitted that in fact, this amounts to putting up a substantively present case and therefore, let there be some time for filing reply. 3. Learned advocate for the petitioner is strongly opposing and submitted that it is unnecessarily amounting to delay the final hearing of the matter. 4. We are of the opinion that the Civil Application for amendment is required to be allowed. It goes without saying that the reply, if any to the amended portion, is always permitted to be filed. Civil Application is allowed. The draft amendment shall be carried out forthwith. 5. Learned advocate for the respondent submitted that four weeks' time will be granted to place on record the reply to the amended portion that would be forming part of the main petition. 6. Learned advocate for the petitioner seriously opposes and submits that the delay in processing refund is itself sufficient and the proceedings before this Court ultimately will have to be on merits of the matter, wherein all sorts of questi....
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....able and the authorities did acknowledge the same and, therefore, ultimately after tossing the matter from one table to another and one authority to another, the authority had come to the conclusion that the case of refund was made out and, accordingly, the order of 24.1.2017 came to be passed. 6.1 Learned counsel appearing for the petitioner further submitted that the respondents were not justified in tossing the file from one authority to another and they were under obligation to process the refund as soon as possible. The petitioner has not only been entitled to receive the refund but entitled to receive the refund along with interest, which may be deemed fit by the Court. 7. Per contra, learned counsel for the respondent invited the Court's attention to the affidavit-in-reply and submitted that the affidavit-in-reply along with order impugned would clearly indicate that the petitioner did not bring forward the requisite documents, which were required to be produced for seeking refund as it was a duty cast upon the claimant of refund to satisfy the concerned authority that the refund would not result into unjust enrichment to the recipient. Counsel for the respondent f....
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....y Commissioner finalizing the assessment. The said bills of entry also bears the details of the duty payment entry from Personal deposit account (PD) and dates thereof. (vii) Copies of ITC Bond No. (1) 25/23.02.1987 (2) 27/27.02.1987 & (3) 3705/03.10.1986 which were operative at the relevant period and same were cancelled later. (viii)Undertaking dated 31.05.2018 for non submission of original bills of entry (ix) Undertaking dated 31.05.2018 for non submission of relevant ledgers and duty payment challans. (x) Undertaking dated 31.05.2018 for non submission NOC of ONGC Dehradun." .............. "19. I find that, M/s. Oil and Natural Gas Corporation Ltd., Vadodara have filed Special Civil Application No.19096 of 2018 in High Court of Gujarat, Ahmedabad challenging the legality, propriety and validity of the letters dated 21.11.2017 and 16.07.2018 of the Deputy Commissioner (Refund), Custom House, Kahdla, by which necessary documents were called for to examine the aspect of "Unjust Enrichment". Vide order dated 21.11.2019 Hon'ble High Court of Gujarat has adjourned the matter to 02.12.2019 and it is held that no further time s....
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....50926 515/86 25% 1147823 7603103 8 F- 00611 17.02.1987 359959 633528 515/86 25% 89990 543538 9 F- 00613 17.02.1987 3107 5826 515/86 25% 777 5049 10 F- 00614 17.02.1987 14342266 18984199 515/86 25% 3585567 15398632 11 F- 00615 17.02.1987 551987 922232 515/86 25% 137997 784235 12 F- 00616 17.02.1987 1087736 2518298 515/86 25% 271934 2246364 13 F- 00617 17.02.1987 5209640 7081481 515/86 25% 1302410 5779071 14 F- 00641 20.02.1987 16060 20878 515/86 25% 4015 16863 15 F- 00685 21.02.1987 5078 9547 515/86 25% 1270 8277 TOTAL 67894271 13711630 54182641 Therefore, after the final assessment an excess duty amount of Rs. 5,41,82,641/- paid by the claimant was quantified by the Deputy Commissioner in the Order-in-Assessment No.KDL/ DC/ NC/ 105/ GR.V/2016, dated 23.01.2017. 24. Further, sub section 2 of Section 18 of Customs Act, 1962 is extracted here; "(2) When the duty leviable on such goods is assessed, f....
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....t been passed on by him to any other person. It is an undisputed fact that, bills of entry was finally assessed vide Order-in-Assessment No.KDL/DC/NC/105/Gr.-V/2016 on 23.01.2017 and after the final I assessment the claimant filed application dated 16.08.2017 on 21.08.2017 which was deficient with respect to the requisite documents. 31. It is also an undisputed fact that, till the date, the claimant has not submitted relevant Ledgers A/c [Balance Sheet, showing the Custom duty paid against relevant Bill of Entry is recoverable from Customs authority and no recovery thereof has been made from the buyers or any other persons and relevant MODVAT/CENVAT ledgers/ Register of the relevant period for verification of "No Modvat Credit has been availed by the unit against the relevant Bill of Entry" which were necessary for the mandatory examination of the unjust enrichment before releasing the refund. Therefore the refund claim was filed by the claimant was never complete. ........ 33. In view of above discussion, I find that, the claimant is not eligible for the interest amounting to Rs. 17,03,05,689.63 as claimed by them. Now I proceed to examine the refund cla....
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.... been passed on to the buyer and the claimant i.e. M/s. ONGC Ltd. have not succeeded in rebutting the presumption. The claimant has not led any sufficient and satisfactory evidence to prove that the burden of duty incidence has not been passed on; therefore they are not eligible for refund on count of unjust enrichment. ...... ORDER (i) I sanction and order to credit the amount of Rs. 5,41,82,641/(Five Crore Forty One Lakh Eighty Two Thousand Six Hundred Forty One Only) claimed by M/s. Oil and Natural Gas Corporation Limited, Head Geophysical Services, Western Onshore Basin, Makarpura Road, Vadodara-390009, to the Consumer Welfare Fund under Section 27(2) of the Customs Act,1962. (ii) I reject interest amount of Rs. 17,03,05,689.63 claimed by M/s. Oil and Natural Gas Corporation Limited, Head Geophysical Services, Western Onshore Basin, Makarpura Road, Vadodara-390009. (iii) The refund claim filed by M/s. Oil and Natural Gas Corporation Limited, Head Geophysical Services, Western Onshore Basin, Makarpura Road, Vadodara- 390009 for Rs. 22,44,88,330.71/- (Rupees Twenty Two Crore Fourty Four Lakh Eighty Eight Thousand Three Hundred Thirty a....