TaxTMI 
TaxTMI 
2023 (6) TMI 1060
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....f condition that Cenvat credit on inputs and capital goods is not claimed under Rule 3 read with Rule 13 of the Cenvat Credit Rules, 2004. However, at the time of importation, the benefit of said notification could not be availed by the appellants in respect of the 154 nos. of Bills of Entry (B/Es) filed by them, owing to the reason that the EDI system did not have this exemption updated in respect of imported goods. Further, there was also confusion with regard to the additional duty payable on importation of the subject goods and their entitlement to the duty exemption provided under the said notification. The matter went up to the Hon'ble Supreme Court and the Hon'ble Court in the case of SRF Ltd., Vs. Commissioner of Customs, Chennai, 2015 (318) E.L.T. 607 (S. C.) have held that for levying CVD on imported goods, exemption notification issued under Section 5A of the Central Excise Act, 1944, with the condition relating to non-availment of input credit be considered and such exemption would apply to the imported goods also. 1.2. Since the notification dated 17.03.2012 (supra) has provided for the beneficial rate of CVD at 1% for the subject goods and the appellants having been ....
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....s on 14.02.2020 (2 SCNs) and 26.02.2020 (1 SCN) under Sub-section (1) of Section 28 ibid, seeking recovery of alleged erroneous refunds granted earlier by the department. Supplementary SCNs dated 15.01.2021 and 30.12.2020 were also issued by the department seeking recovery of refund amounts along with interest and for imposition of penalty on the appellants under Section 114A ibid. 1.7. Appeal filed by the Revenue against the adjudication order dated 03.08.2019 was disposed of by the learned Commissioner (Appeals) vide order dated 22.03.2021, in allowing the appeal of Revenue and by setting aside the original order passed by lower authority. The said Order of the Commissioner (Appeals) was appealed against before the Tribunal, which was disposed of by the Tribunal vide Final Order No. A/87098/2021 dated 09.11.2021, in allowing the appeal with consequential relief to the appellants herein. 1.8. The above show cause notices along with the supplementary notices issued by the department were adjudicated vide order dated 30.03.2021, wherein the learned Commissioner of Customs (Import) has confirmed the demand of Rs.18,93,05,931/- along with interest and also imposed equal amount of pe....
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....vables in the Balance Sheet under the head 'Current Assets: Loans and Advances'. He has also referred to the statement dated 02.11.2020 recorded from the partner of the Chartered Accountant firm M/s PWC to state that the excess payment was not recognised as 'Receivables', until the judgement was delivered by the Hon'ble Supreme Court in the case of SRF Ltd. (supra). Therefore, the learned AR pleaded that the excess paid incidence of duty has been passed on by the appellants and under such circumstances, if the refund is not recoverable, then they will be unjustly enriched at the cost of somebody else and as such, the doctrine of unjust enrichment is squarely applicable in the case in hand for transferring the refund amount to the Consumer Welfare Fund (CWF). 4. Heard both sides and examined the case records. 5.1. It is an admitted fact on record that re-assessment order passed in the disputed B/Es were not questioned or objected to by the department, which is evident from the fact that no appeals were preferred by the Revenue against the finally assessed B/Es. Thus, under such circumstances, the plea cannot be raised by Revenue that the re-assessment of B/Es are neither proper no....
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....bid, cannot also be sustained. Accordingly, the adjudged demands confirmed in the impugned order are set aside. 6.1. Since, we are setting aside the demands confirmed in the adjudication order 30.03.2021, the only question that remains for consideration by the Tribunal is, whether the amount in dispute should be credited to the CWF in terms of sub-section (2) of Section 27 ibid, or should it be paid forthwith by crediting the refund amount in favour of appellants in terms of the proviso appended to sub-section (2) of Section 27 ibid. 6.2. The provisions for grant of refund of duty are contained in Section 27 ibid. Sub-section (2) to Section 27 ibid, mandates that if the refund sanctioning authority is satisfied that the whole or part of the duty paid by the applicant is refundable, then he may make an order in crediting the refund amount to the CWF. On reading of the said statutory provision, it transpires that crediting the refund amount to the CWF is the rule and granting of the same as refund to applicant-assessee/importer is an exception, carved out in the proviso clause appended thereto. The legislative intent in drafting of such provision is that in case of indirect taxes, ....
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....an amount paid is not charged to the revenue and carried as an asset in the Balance Sheet, then there lies a claim of recovery from the person against whom these amounts have been considered as recoverable for the given value. 6.3. In the case in hand, though the learned Advocate for appellants has submitted the copy of Balance Sheet, Ledger accounts and work sheets to show that the amount of refunds have been reflected as 'claims receivable from the Statutory authorities', but the said facts were negated in the impugned at paragraph 77 (i) and 77(iii), as pointed out by the Learned AR for Revenue. The relevant paragraphs are quoted herein below: "77(i) The statement of Mrs. Meenal Ashish Rane, Financial Controller for M/s. Instagram Micro India Pvt. Ltd. recorded on 28.01.2020 at page no.2 when questioned as to 'How the Customs duty refunds or other Refunds with reference to 1% CVD refund under CENVAT Credit Rule, 2004 before and after the Hon'ble Supreme Court Judgement SRF Ltd. Vs. Commissioner of Customs, Chennai are shown in the Profit and Loss Statement or Balance Sheets of Company M/s. Bright Point India Pvt. Ltd.' wherein she has stated that "it was treated as Expenses (....