TaxTMI 
TaxTMI 
2024 (6) TMI 170
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....factured as well as imported by the Appellant are covered under the Notification No. 01/2011-CE (2% without Cenvat credit) as well as 02/2011-CE (6% with Cenvat credit). 2.2 In terms of the decision rendered by the Hon'ble Supreme Court in the case of M/s SRF Limited v. Commissioner of Customs, Chennai reported in 2015 (318) E.L.T. 607 (SC) , for the period 09.05.2015 onwards, the Appellant opted to pay CVD @ 6% under Notification No. 02/2011-CE 'under protest' though it was eligible for benefits under Notification No. 01/2011-CE. 2.3 Thereafter, the Appellant preferred applications for refund for the excess duty paid in relation to 856 BOEs before the relevant authority, out of which 571 BOEs were filed during the impugned period i.e., 09.05.2015 to 17.06.2015 and 285 BOEs were filed during the subsequent period 18.06.2015 to 10.07.2015. 2.4 As regards the subsequent claim, it is pertinent to note that post rejection by the adjudicating authority vide the OIO dated 23.01.2018, upon the Appellant's appeal, the Ld. Commissioner (Appeals) of Customs, GST & Central Excise, Patna vide an order No. 142/Pat/Cus/Appeal/2018 dated 03.10.2018 granted refund of the excess CVD paid by t....
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....llant has shown the amount of CVD is receivable in their balance sheet and also produced a Certificate certifying that the duty of incidence has not been passed on. Therefore, the refund claim is admissible. 4. On the other hand, the ld.A.R. for the Revenue, supported the impugned order. 5. Heard both the parties and considered the submissions. 6. We find that it is an admitted fact that the appellant paid the duty under protest at the time of importation of goods and this issue was settled by the Hon'ble Apex Court in the case of M/s SRF Limited (supra), wherein the appellant opted to pay CVD @ 6% under Notification No.2/2011-CE dated 01.03.2011 under protest though it was eligible for the benefit of Notification No.1/2011-CE dated 01.03.2011 and the appellant has filed refund of excess duty paid during the period 09.05.2015 to 17.06.2015. The appellant has also filed refund claim for the subsequent period i.e. 18.06.2015 to 10.07.2015. 7. Subsequently, the refund claim filed by the appellant for the excess duty paid, was allowed to the appellant holding that the appellant has been able to pass the bar of unjust enrichment. For better appreciation, the ld.Commissioner (App....
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.... to prove that the tax incidence has not been passed on is entirely on the appellant. This presumption however is a rebuttable presumption as the incidence of indirect taxes on goods and services is expected to be borne by the ultimate consumer only. They have tried to discharge their duty by way measures discussed in para 2 above. The accounting requirements in such situations is essentially two, (1) Balance Sheet of the applicant for the financial year in which the duty amount claimed as refund has been paid or credit note has been issued, should indicate the refund amount as "Duty Receivable" under the heading "Current Assets" and (ii) a certificate to this effect is issued by a Charnered Accountant. The appellants have shown the receivable amount under the head 'short term loans and advances' as "Balance with Excise authorities". 6.1 The CEGAT, Delhi, in the case of Commissioner of Customs, Air Cargo unit vs Maruti Udyog Ltd, as reported in [2003 (88) ECC 584, 2003 (155) ELT 523 Tn Delj, in a similar situation deliberated as follows: "4. We have considered the submissions of both the sides. We observe that the Commissioner (Appeals) has allowed the refund of the d....
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....at incidence of duty is not passed on As against such clear evidence from Chartered Accountant, Revenue has not adduced contrary evidence to show that assessee had passed on the incidence of duty. In absence of any contrary evidence Certificate needs to be accepted. It is noticed that identical/similar issue come up before High Court of Karnataka, which was disposed of directing Revenue Authorities to sanction the refund, by holding that refund is eligible for granted to them - High Court of Mudras in case of Micromax Informatics on identical set of facts held that refund is admissible. On the face of authoritative judicial pronouncement on self same issue, Lower Authorities have erred in coming to a conclusion that assessee has not passed the hurdle of unjust enrichment - The impugned order is set aside on the question of unjust enrichment : CESTAT". 6.3 As in the cases before the Hon'ble Tribunal cited above, the Department has failed to bring any fact/documents on record which is contrary to whatever the appellant have brought to the table and disprove conclusively the position of the appellant that they have not passed on the burden of CVD to their customers. The appella....
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....hough, the appellant did not follow the elaborated procedure of payment of duty under protest. The entire idea of payment of duty under protest is to inform the Revenue that the assessee is not in agreement with the Revenue's view but to avoid any confrontation at that particular point of time, duty is being paid and the assessee reserves his right to settle the same on the out come of the final verdict on the disputed issue. As such it cannot be said that though the initial payment on 24-3-03 was under protest, the subsequent payments were voluntary and were hit by the bar of limitation. It has to be concluded that the appellant paid the duty under protest and on the final dispute about exemption being settled in their favour, was entitled to the refund of the same. Gujarat High Court in the case of Shree Ram Food Industries, 2003 (152) E.L.T. 285 (Guj.) has observed that payment having been made by the petitioner pursuant to demand and threat made by the Deputy Commissioner & Superintendent, not a voluntary payment but to be treated as payment under protest and limitation will not apply. As I hold that the appellant having lodged the protest at the time of first payment of duty u....