TaxTMI 
TaxTMI 
2023 (12) TMI 448
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....l assessment of the impugned Bills of Entry were resorted to. 2.2 The Department, therefore, classified the impugned goods under CTH 90011000 attracting Customs duty at the rate of 10% adv. The importer paid the duty under protest and also followed it up by formal letter of protest to the Department. The goods were subsequently got tested from Electronic Regional Test Laboratory (ERTL) whereupon the Department concluded that the subject goods were classifiable under CTH-85447090 attracting nil rate of Basic Customs Duty. 2.3 The respondent herein, thereafter, filed two refund claims with reference to the said 26 Bills of Entry. They also enclosed therewith Chartered Accountant's Certificate indicating that the amount was due as refund of Customs duty and was shown in the Books of Account and not passed on to the buyers. The respondent also submitted Statutory Auditor's Certificate Reference No.SN/2016-17/004 dated 18.04.2016 issued by Deloitte Haskins and Sells, which clearly indicated therein as "Amount due as refund of Customs duty". 2.4 The ld.Adjudicating Authority, however, rejected the said refund claim of the respondent herein on the ground the claimant has failed t....
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....here was a difference of opinion between the Member (Technical) and Member (Judicial) regarding the refund of the customs duty. It was held by the Member (Technical) that the incident of duty has not been passed on to the customers and therefore the assessee is eligible to claim the refund of custom duty whereas Member (Judicial) held it otherwise. The matter was referred to a third Member who agreed with the Member (Technical) holding that the incident of duty had not been passed on to the customers and therefore the assessee is eligible to refund of the customs duty. It is an admitted position that the burden to prove that the customs duty was not passed on to the customers is on the assessee. The Member (Technical) and the third Member on the basis of the following facts : (i) in the invoices, it was clearly mentioned that the sale price did not include the customs duty. (ii) that there was no change in price post-levying of the duty. Assessee had filed its price list and the customs duty was imposed thereafter. The goods were sold to the customers at the same price which was stated in the price list. (iii) That there was an auditor's certificate certi....
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.... empirically justified. 9. We find that on the very issue, the Hon'ble Bombay High Court in the case of Commissioner of Central Excise, Pune I Vs. Sandvik Asia Limited reported in 2015 (323) ELT 431 (Bom.), has held as under : "4. On perusal of the impugned order and considering the arguments of both learned counsel, we are unable to agree with Mr. Kantharia. The Tribunal was not concerned with the treatment given to the amount and as deposited in the Assessee's profit and loss account. It is immaterial and irrelevant for the Tribunal and equally for us as to what the Assessee terms this amount in his Books of Account. Even if it is shown on the 'expense side' that does not mean that the presumption that the burden has been passed to the consumer can be raised." 10. In view of the aforesaid reasons and the law as pronounced by the higher judicial forums including the Hon'ble Apex Court, we are of the view that there is no infirmity in the order-in-appeal passed by the ld.Commissioner (Appeals). Accordingly, the appeal filed by the Department is without merit. The same is, therefore, dismissed and the order of the ld.Commissioner (Appeals) is upheld. (Operative par....
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....ication. This order became final. 3. Assessee thereafter filed an application claiming refund of the customs duty paid by it. The authority-in -original rejected the claim on the ground that the assessee had passed on the burden of the customs duty to its customers and refund of the customs duty would amount to unjust enrichment as provided under Sections 27, 28(C) and (D) of the Act. Assessee challenged the order-in-original before the Commissioner of Customs (Appeals). Commissioner of Customs (Appeals ) upheld the order-in-original. Assessee thereafter filed appeal before the Tribunal. Initially, there was a difference uf upinion between the Member (Technical) and Member (Judicial) regarding the refund of the customs duty. It was held by the Member (Technical ) that the incident of duty has not been passed on to the customers and therefore the assessee is eligible to claim the refund of custom duty whereas Member (Judicial) held it otherwise. The matter was referred to a third Member who agreed with the Member (Technical ) holding that the incident of duty had not been passed on to the customers and therefore....
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....el.) it has been held that since the Chartered Accountant certified that differential duty was not recovered from customers, the Importer had discharged the burden of proof (as required in Sec. 27 of the Customs Act, 1962) and was entitled to the Refund which was not barred by the provisions of unjust enrichment. The same view was echoed by the West Zonal Bench, Mumbai of the CESTAT in the case of Commissioner of C. Ex, PUNE-I Vs. Crystal Granite & Marble (P) Ltd., 2014 (304) ELT 572 (Tri- Mumbai). The Tribunal held that since the party provided documents such as Invoices and Chartered Accountant Certificate certifying that the incidence of duty had not been passed to the customers and that the duty had been paid under protest, the importers were entitled to refund. and the importers had passed the bar of unjust enrichment as provided in Sec. 27 of the Customs Act, 1962. 23. That merely showing the disputed amount in question as expenditure shall not lead to rejection of the refund claim and further conclusion that burden and incidence of duty has been passed on and CA certificate being there certifying otherwise. Further, mere fact that not p....
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....clear that the Appellant became eligible for ncfund only when the change of classification was communicated to it. Till such time as the revised classification was intimated to the Appellant by the letter referred to above, there was no ground for the Appellant to either prefer a claim of refund of duty paid under protest or even show the same as amount receivable from the Department. The refund depends on the revised classification and obviously till the Appellant got the intimation from the Department about the revised classification, the Appellant could not have presumed that they would be entitled for the refund of duty paid by it. 28. It is not necessary to show the amount of refund receivable from the department in the balance sheet/books of account in the same year in which the amount of duty paid has booked as expenditure. Even if the amount has been certified by the Auditor to have been shown as receivable from the department in the subsequent year, the same is not hit by the bar of unjust enrichment. The Appellant has submitted that once it is shown as receivable, it becomes recoverable. 29. Reliance may be placed u....
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....nce of such amount stands passed on, for the simple reason that if the incidence of particular amount assumably passed on to any other persons then it cannot be permitted under Income Tax law to book the same amount as receivable in the subsequent financial year. Therefore in my view even in the year 2008-09 when the amount was shown as receivable, it can be clearly established that the incidence of duty has not been passed on. The lower authority have presumed that even though the excess paid duty was not directly passed on to these customers to whom the goods were sold but it might have been passed on the any other person. In my view when the amount was shown as receivable coupled with fact that the said excess paid duty was not recovered from the concerned customers, without any contrary evidence it cannot be presumed that incidence was passed to any other person. It is not convincing that burden of an amount related to particularly customer can be shifted to any other person. In the present cut throat competitive commercial world, if the goods are sold at a particular competitive price, just for the sake of recovery of an....