TaxTMI 
TaxTMI 
2023 (9) TMI 1267
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....ble Supreme Court in the case of M/s. SRF Ltd. Vs. Commissioner of Customs, Chennai reported as 2015 (318) E.L.T. 607 (S.C.), the appellant filed five refund applications. The details are tabulated as follows: Date of refund application Period involved Amount of refund Order-in-Original 14.08.2015 September 2014 22,48,35,292/- 2846/DS/2016 dated 23.01.2017 17.09.2015 October 2014 33,91,47,955/- 2845/DS/2016 dated 23.01.2017 17.09.2015 November 2014 to January 2015 68,11,45,947/- 2844/VKJ/2016 Dated 23.01.2017 27.10.2015 February 2015 and March 2015 50,15,32,437/- 2847/RK/2016 dated 23.01.2017 30.06.2015 June 2014 to March 2015 28,48,22,600/- 234/2016 dated 23.01.2017 3. We further observe that no action initially was taken on those application, where after the appellant filed a Writ Petition No. 11958/2016 before the Hon'ble High Court of Delhi. The interim directions were given to the department vide interim order dated 21.12.2016 to process the refund claims which were the subject matter of the said writ petition and to pass the orders therein to be followed by release of....
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....me Order-in-Original which is not acceptable in law. It is further submitted that without any strong evidence brought on record by M/s. Micromax Informatics Limited, Commissioner (Appeals) has wrongly held that the burden of impugned duty was not passed on by the assessee. The onus to prove that the refund amount has not been recovered from the buyers is always on the claimant. In the present case, claimant M/s. Micromax Informatics Limited has actually failed to discharge the said onus. Hence, the sanction of refund and disbursement thereof to M/s. Micromax Informatics Limited is a wrong order. He relied upon the decision of Hon'ble Supreme Court in the case of Mafatlal Industries Limited Vs. Union of India reported as 1997 (89) ELT 247 (SC). 5.1 It is further submitted that amount of refund claim in the form of CVD was already treated as cost/expenses. Accordingly, it was debited to profit and loss account for the Financial year 201415 which implies that the burden of customs duty was passed on to the buyer of the goods imported. Commissioner (Appeals) is alleged to have ignored this important fact. The decision of this Tri....
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....f directing the sanctioned refund to Consumer Welfare Fund was wrong as there is no unjust enrichment of assessee-respondent. The same has clearly and rightly been explained in the impugned order. Hence, there is no infirmity. 6.1 Learned counsel further submitted that no doubt during the pendency of these proceedings there has been another decision of Hon'ble Supreme Court in the case of ITC Ltd. Vs. Commissioner of Central Excise, Kolkata-IV reported as 2019 (368) E.L.T. 216 (S.C.), wherein it has been held that a claim of refund could not be entertained unless the order of assessment or self-assessment was modified in accordance with law by taking recourse to appropriate proceedings. Pursuant thereto M/s. Micromax Informatics Limited filed reassessment applications under Section 17(5) of the Customs Act, 1962 with respect to the relevant Bills of Entry on 26.02.2020. Though the reassessment request was initially rejected vide order dated 09.12.2021. However, Commissioner (Appeals) vide order dated 25.02.2022 has allowed the appeal for reassessment and it is thereafter that the present Commissioner (Appeals) has filed the impugned orde....
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....ty has not been passed on the buyer. It is pertinent that invoices clearly evidence that CVD has in fact not been recovered from the buyers. As no other alternate means of recovery of CVD is available, in the event the same is not reflected on the sale invoice, it cannot be presumed that the incidence of duty has infact, been passed onto the buyers because the sale price before as well as after the reassessment remained the same. We draw our support from the decision of Hon'ble Gujarat High Court in the case of Ashish Metal Rolling Mills Vs. Commissioner of Central Excise, Ahemdabad-I reported as 2014 (305) E.L.T. 510 (Guj.). 9. We observe from the order under challenge that the Commissioner (Appeals) has held the ground false based whereupon the refund was sanctioned to Consumer Welfare Fund that the amount of refund claims were not been recognized as assets and thus were held to have formed the part of cost of products. He observed that Chartered Accountant's Certificate was also not accepted by original authority. The Commissioner (Appeals) rather appreciated the notes on the Balance Sheet. Note no. 47 of the statutory Auditor's Re....
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....resent case is on facts of the amounts claimed as excess duty paid shown as balance and not used in cost of manufacture. In the present case the ratio of that case cannot be applied. If the department wants to not to rely on the CA's certificate, they can get their Cost Accountant appointed & get the costing verified. We cannot upheld the rejection of the refund the reasons as arrived." Thus, the Chartered Accountant's Certificate which is issued after the analysis of final records of the assessee, once certify that the incidence of duty has not been passed on to the buyers, the same cannot be rejected unless the department provides relevant documents and necessary reasoning justifying the rejection. As observed by Commissioner (Appeals), we also do not find any such document nor any such reasoning on record. Even Board's Circular No. 18/2010 dated 08.07.2010 instructed the departmental authorities to accept the Chartered Accountant's certificate for the purpose satisfying the condition that the burden of CVD has not been passed on by an importer to any other person. 10. Though the department has laid emphasis upon the decis....