TaxTMI 
TaxTMI 
2023 (7) TMI 159
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.... Rs. 1,47,16,78,904.21/-. 2. It is difficult to comprehend as to why the department would file an appeal before the Commissioner (Appeals) as the Assistant Commissioner, by the order dated 22.09.2016, had rejected the refund application filed by Intex, but what is more disturbing is the fact that the appeal was filed by the department on 16.01.2017, much after the Delhi High Court had on 08.11.2016 in a Writ Petition filed by Intex after taking note of the fact that the impugned order dated 22.09.2016 passed by the Assistant Commissioner had rejected the refund claim, held that the claim of the Writ Petitioner had to succeed and, accordingly, issued a direction to the respondents to pay the appropriate refund amount to the Writ Petitioner together with interest applicable till the date of actual payment within three weeks from the date of the order. It also needs to be noted that the Assistant Commissioner, pursuant to the aforesaid directions issued by the Delhi High Court, sanctioned the refund claim to Intex with interest by the order dated 29.11.2016, which order was subsequently modified in view of the rectification application filed by Intex and the correct balance amount of....
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....ore the Commissioner (Appeals) was accepted and the matter was remanded to the Assistant Commissioner to pass a fresh order in the light of the observation made by the Commissioner (Appeals), the department has filed this appeal contending that the order passed by the Commissioner (Appeals) is not correct in view of the decision of the Supreme Court in M/s. ITC Limited vs. Commissioner of Central Excise, Kolkata IV Civil Appeal No. 293294 of 2009 decided on 18.09.2019. 5. In order to appreciate the contentions advanced by Shri Manish Kumar Chawda, learned authorized representative appearing for the department and Shri Tarun Gualti, learned senior counsel appearing for Intex, it would be necessary to briefly narrate the essential facts. 6. Intex is in the business, inter alia, of import and sale of electronic products such as mobile phones in India. As part of its business activities, it imported mobile handsets, including cellular phones, during the period between 30.03.2015 to 14.07.2015 and filed Bills of Entry for home consumption and paid additional duty of customs by way of scrips in terms of section 3(1) of the Customs Tariff Act, 1975 the Tariff Act at the rate of 13.5% of....
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.... are as follows: (i) To be covered under Condition No. 16 of the said Notification, the goods manufacturer should have to first be eligible for availing CENVAT credit; (ii) Only if a person is eligible to avail CENVAT credit can such a person exercise the option to not taking such credit, as required under Condition No. 16; (iii) The ratio of the Supreme Court judgment in Motiram Tolaram vs. Union of India 1999 (112) ELT 749 (SC) case was squarely applicable; (iv) The Supreme Court delivered the judgment in SRF in the context of a different notification and goods; and (v) It cannot be presumed in fiction that the importer is a manufacturer of goods and was eligible to claim the CENVAT credit because no one can claim to forfeit the benefit if it did not accrue in the first instance. 12. Feeling aggrieved by the rejection of its refund application by the order dated 22.09.2016 passed by the Assistant Commissioner, Intex filed Writ Petition (Civil) No. 10818/2016 before the Delhi High Court claiming the following reliefs: "a) That this Hon'ble Court be pleased to declare Order dated 22.09.2016 in Refund Application No. ACE/64/2016 issued by Respondent No. 3 as null and vo....
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....itioner could not establish its entitlement to CENVAT credit and, therefore, was ineligible for the refund. The petitioner had relied upon the ruling of the Supreme Court in SRF Ltd. vs. Commissioner of Customs, Chennai, 2015 (318) ELT 607 (SC) and the order of this Court in Micromax Informatics Ltd. vs. UOI and Ors. in WP(C) No. 4712/2016 decided on 28.09.2016. ***** ***** 6. In the light of the law laid down by the Supreme Court in SRF Ltd. (supra) the Court is of the opinion that the claim in these proceedings has to succeed. A direction is issued to the respondents to process the petitioner's refund claim and pass appropriate orders having regard to the fact the petitioner had filed supporting certificates in the form of a Chartered Accountant's clarification/certificate etc., claiming that the benefit sought was not passed on to the customers. The respondents are further directed to pay the appropriate refund amount together with interest applicable till date of actual payment within three weeks from today. 7. The writ petition is allowed in the above terms." (emphasis supplied) 14. To ensure compliance of the above directions of the Delhi High Court, the Assistan....
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....balance amount of interest of Rs. 3,72,55,652/- in terms of section 27A of the Customs Act. 16. The amount together with interest was received by Intext through RTGS Facility. 17. In February 2017, the department filed a Special Leave Petition (C) No. 18123/2017 before the Supreme Court against the order dated 08.11.2016 passed by the Delhi High Court and in this Special Leave Petition, the department raised grounds regarding the maintainability of the refund application under section 27 of the Customs Act. The Supreme Court dismissed the Special Leave Petition filed by the department by order dated 07.07.2017. As a result of the dismissal of the Special Leave Petition, the order dated 08.11.2016 of the High Court directing the department to grant refund of the excess customs duties paid by Intex with interest attained finality and the department was bound by the order. 18. After over seven months from the dismissal of the Special Leave Petition filed by the department before the Supreme Court, Intex received a notice dated 15.02.2018 issued by the Commissioner (Appeals), stating that the department had filed an appeal on 16.01.2017 against the order dated 22.09.2016 passed by t....
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.... 2016 decided on 26-2-2016, the Hon'ble Delhi High Court vide its order dated 26.2.2016 set aside the orders of the Assistant Commissioner of Customs (Refund) and remanded the case for passing a fresh order in the case. ***** I find that the ratio of the above judgments, prima facie, seems applicable to this case. In due consideration of Departmental appeal, I am therefore if the view that the order passed by the Assistant Commissioner of Customs (Refund) merits for passing a fresh order in view of the aforementioned orders of the Hon'ble Delhi High Court and Hon'ble SC decision M/s SRF Ltd., supra. Order In view of the foregoing discussion and findings, I set aside the order of the Assistant Commissioner of Customs (Refund) with the direction to pass a fresh order as discussed above within two months of the communication of this order." (emphasis supplied) 22. The first issue that arises for consideration in this appeal is as to whether the department could have filed an appeal against the order dated 22.09.2016 passed by the Assistant Commissioner rejecting the refund application filed by Intex, as it has been strongly urged by the learned senior counsel appearing ....