TaxTMI 
TaxTMI 
2025 (3) TMI 858
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....a. The appellant imported mobile phones between 08.06.2015 and 18.06.2015 for home consumption and paid countervailing duty [CVD] @ 12.5% on the 4 Bills of Entry, as the benefit of the Notification dated 17.03.2012, subsequently amended on 01.03.2015 [the Notification], extending concessional rate of 1% CVD on imports of mobiles phone for home consumption was not extended to the appellant for the said import. 3. The appellant filed an appeal against assessment of the Bills of Entry before the Commissioner (Appeals) with a prayer that the benefit of concessional rate of CVD should also be granted to the appellant in terms of the judgment of the Supreme Court in SRF Ltd. vs. Commissioner of Customs, Chennai [2015 (31B) E.L.T. 607 (SC)]. The Commissioner (Appeals) rejected the appeal filed by the appellant by an order dated 29.06.2016. This order was assailed by the appellant by filing Customs Appeal before the Tribunal. The Tribunal, by a decision dated 05.01.2017, allowed the appeal and directed the adjudicating authority to examine the claim of the appellant denovo within a period of four months after providing an opportunity of hearing to the appellant. Thereafter, an order was....
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....oved beyond doubt that the incidence of CVD has not been passed on to the buyers. 10. The findings recorded by the Assistant Commissioner (Refund) on these two issues are as follows: "At the outset, it is essential to find out whether the refund claim submitted by the importer is well within time. The party has filed refund claim application on 13.03.2018 against the excess duty paid by them. Bill of entries has been re-assessed on 09.02.2018. Therefore, the refund claim has been filed well within the time limit of one year from the date of re-assessment. So, the refund claim is not hit by bar of limitation. Hence refund claim is not barred by limitation, as per provision to section 27(1) of the Customs Act, 1962. I further find that the party has submitted their relevant books of accounts and audited financial statement for the year 2015-16 in which the duty recoverable under the head "current assests sub-group (note 13) short-term loans & advances" in "balances with statutory/government authorities". I found that the burden of CVD has not been passed on by the importer to their customers directly or indirectly, I have already taken note of the facts that the ....
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....vable has been shown as Rs. 17,38,94,156/-. However, I fail to understand how the Refund Sanctioning Authority derived the conclusion that the amount of Rs. 1,67,79,311/- was included in said stated amount of Rs. 17,38,94,156/- shown in the Balance Sheet for Financal Year 2015-16. The Respondent has also not adduced any evidence in this regard in their response to appeal filed by the Department. The entire Balance Sheet of Financial Year 2015-16 does not contain any breakup or details of Rs. 17,38,94,156/- from which it can be concluded that the refund amount of Rs. 1,67,79,311/- was part of said amount. 5.4.1. I further note that the Refund Sanctioning Authority relied upon certificate dated 09.04.2018 of Sh. D.K. Munjal, Charted Accountant and Proprietor of M/s. D.K. Munjal & Associates. First of all, the said Charted Accountant was not the firm which audited the balance sheet of Finance Year 2015-16. Further the certificate dated 09.04.2018 is not in respect of impugned refund of Rs. 1,67,79,311/- which is related of finally assessed bills of entry while the certificate dated 09.04.2018 referred to provisionally assessed bills of entry. 5.4.2 Respondent Importe....
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....ut that the Certificate issued by the Chartered Accountant and the entries in the Books of Accounts of the appellant clearly established that the initial burden of proof required under section 28D of the Customs Act was satisfied by the appellant. However, the order passed by the Commissioner (Appeals) completely ignores Note 9 of the Balance Sheet that explicitly shows "Customs Duty Receivable" of Rs. 17,38,94,156/- from the customs for the year ended 31.03.2016. Learned counsel, therefore, submitted that an adverse conclusion could not have been drawn by the Commissioner (Appeals) merely for the reason that there was no separate mention of the amount of refund of the relevant Bills of Entry in the Balance Sheet; (iii) It is a settled law that when the customs duty is reflected to be receivable in the Books of Accounts, the burden of duty would not be passed to the customers and would be borne by the assessee itself. In this regard, reliance has been placed on the following decisions: (a) Bridgestone India Pvt. Ltd. vs. CGST CC and CCE, Indore [Excise Appeal No. 50610 of 2018 decided on 30.07.2018]; (b) Commissioner of Cus., Tuticorin vs. Virudhunagar Te....
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....ad of it being paid to the appellant. 18. It is, therefore, clear that there is no dispute that the appellant had paid an excess amount of Rs. 1,67,79,311.90/- towards CVD and that the refund claim was filed within time. 19. While examining the issue of unjust enrichment, the Assistant Commissioner (Refund) noticed that the appellant had submitted relevant Books of Account and audited Financial Statement for the year 2015-16 in which the duty recoverable was shown under the head "Current Assests Sub-Group (Note 13) Short-term Loans & Advances" in "Balances with Statutory/government authorities". The Assistant Commissioner (Refund) also noted that the appellant had submitted a Chartered Accountant Certificate dated 09.04.2018 certifying that the burden of duty under the refund claim had not been passed on to the buyers and the amount that was claimed was shown in the Books of Account/Balance Sheet as amount recoverable from the customs. The Assistant Commissioner (Refund) further recorded a finding that the appellant had discharged the statutory obligation cast upon him of rebutting the presumption of unjust enrichment and, therefore, the burden of duty had not been passe....
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.... 2,24,447 Advance Excise duty - - 5,08,875 VAT Receivables - - 5,57,192 2,38,275 Customs Duty Receivable - - 17,38,94,156 3,25,33,211 Advance to Supplier - - 9,02,94,213 2,65,66,715 Entry Tax Receivable - - 1,69,622 (emphasis supplied) 23. The Certificate dated 09.04.2018 issued by the Chartered Accountant is reproduced below: "TO WHOMSOEVER IT MAY CONCERN Based on the examination of Financial Statements, details and documents produced before us and as per the information and explanation provided to us of M/s vivo Mobile India Private Limited ("the Company") having its registered office at 10th & 11th Floor, Palm Springs Plaza (Complex) Village Wazirabad, Sector-54 Gurugram, Haryana-122003, we hereby confirm that the Company having IEC No. 0514053739, has imported mobile phones and paid Custom Duty (CVD) on the basis of provisional bills of entry. At the time of filing the provisional bills of entry, the Company paid CVD @ 12.5%. Now these provisional bills of entry have been finalized/reassessed by the Hon'ble Deputy Commissioner of Customs Group VA and the D....
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....Seven Lakhs Eighty-Eight Thousand Seven hundred and seventy-eight only) on cellular mobile phones imported vide 4 (four) Bills of Entry during the relevant period, the details of which are as follows: SN. BoE No. and Date CVD Paid Challan Details CVD Payable Excess CVD 1. 9501365 dt. 08.06.2015 25,93,573.60 09.06.2015 2,06,728.60 23,86,845.00 2. 9514552 dt. 09.06.2015 53,64,125.00 10.06.2015 4,29,130.00 49,34,995.00 3. 9538039 dt. 11.06.2015 43,32,900.00 12.06.2015 3,46,632.00 39,86,268.00 4. 9614231 dt. 18.06.2015 59,57,250.00 19.06.2015 4,76,580.00 54,80,670.00 Total 1,82,38,382.50 14,59,070.60 1,67,88,778.00 (b) The abovesaid amount of CVD and Cess was paid by Vivo at 12.5% even when the benefit of Serial No. 263A of Notification No. 12/2012-CE dated 17.03.2012 was available to them which grants the benefit of reduced rate of CVD at 1%. Accordingly, the excess amounts paid by Vivo were refundable to Vivo. On this basis, the above Bills of Entry have also been reassessed by the Hon'ble Deputy Commissioner of Customs and communicated vi....
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....88,788/- was paid as excess CVD by the appellant and this amount was included in the amount of Rs. 17,38,94,156/- which was shown as "customs duty receivable" in the Financial Statement for the year ended 31.03.2016. The Annexure to this Certificate also gives a breakup of the "customs duty receivable" to the extent of Rs. 17,38,94,156/- and includes the amount of Rs. 1,67,88,788/-. 26. It needs to be noted that Note 9 to the Financial Statement for the year ended 31.03.2016 clearly shows that the customs duty receivable by the appellant as on 31.03.2016 was Rs. 17,38,94,156/- against an amount of Rs. 3,25,33,211/- on 31.03.2015. The Assistant Commissioner (Refund) placed reliance upon this Note. However, the Commissioner (Appeals) observed that it cannot be concluded from this Note that the amount of Rs. 1,67,79,311/- was included in the amount of Rs. 17,38,94,156/- shown as "customs duty receivable". The Chartered Accountant Certificate dated 09.04.2018 clearly mentions that at the time of filing the provisional Bills of Entry, the appellant had paid CVD @ 12.5% and the said Bills of Entry have been finalized/re-assessed, holding that the appellant was required to pay dut....
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....ling the Financial Statement and the Chartered Accountant Certificate that the incidence of duty had not been passed on to the buyer of goods and that it was receivable by the appellant from the customs, the requirement of section 28D of the Customs Act that provides that every person who has paid duty on any goods under the Customs Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods stood satisfied as "the contrary" was proved by the appellant. 30. In support of the aforesaid conclusions drawn in this order, it would be appropriate to refer to certain decisions. 31. In Principal Commissioner of Customs vs. Telecare Network (India) Pvt. Ltd. [(2023) 13 Centax 8 (Del.)], the Delhi High Court approved the following findings recorded by the Tribunal: "8. Dealing with the objection of unjust enrichment, the CESTAT has in paragraph 18 held as follows:- "18. ***** As far as the unjust enrichment is concerned, from the Chartered Accountant's certificate it is evident that the duty was not passed on and it was treated by the respondent as a receivable. Revenue has not produced even a....
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....apatnam [2020 (371) E.L.T. 784 (Tri. - Hyd.)], the Tribunal observed: "2. ***** Learned Counsel for the appellant submits today that they have, accounted the differential of Customs duty paid as "receivables" as they were expecting the amount to be received as refund from the department. They have only added the final amount of Customs duty assessed to the cost of raw materials and therefore they are entitled for refund of the differential duty and are not hit by the clause of unjust enrichment. In support of this, he filed an affidavit by the Assistant Manager of the company and cost accountant certificates along with an abstract of the balance sheet. The balance sheet does show as a heading "balance with excise sales tax authorities". The certificate of the cost accountant indicated that the differential custom duty was included in this receivables account. I do not find any evidence to the contrary in the records before me. Evidently, the amount is added in the books of accounts as "amount receivables" and not as "cost of raw materials" and it could not have been passed on indirectly to the customers. In view of the above, I find that the appellant is entitled to refund....