TaxTMI 
TaxTMI 
2025 (3) TMI 856
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....tics Ltd Commissioner of Customs NCH 18.38 C/50825/2024 Micromax Informatics Ltd Commissioner of Customs NCH 35.89 2. The Revenue has filed appeal no. C/51109/2019 assailing the Order-in-Appeal no. CC(A)Cus/D-I/ACC-Import/Refund/NCH/664/2018-19 dated 11.02.2019 wherein the Commissioner has held that the appellants are entitled for refund of Rs.18.38 cores and remanded the case back to adjudicating authority with a direction to pass fresh order on the basis of CA certificate and other documents. The Revenue has also filed appeal no. C/51110/2019 assailing the Order-in-Appeal no. CC(A)Cus/D-I/ACC-Import/Refund/NCH/666/2018-19 dated 11.02.2019 wherein the Commissioner has held that the appellants are entitled for refund of Rs.35.89 cores and remanded the case back to adjudicating authority with a direction to pass fresh order on the basis of CA certificate and other documents. 3. M/s Micromax Informatics Ltd has filed appeal no. C/50824/2024 assailing the Order-in-Appeal no CC(A)Cus/D-I/Import/NCH/5130/2023-24 dated 01.03.2024 wherein the ld. Commissioner has allowed the Departmental appeal and set aside the impugned Order-in....
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....High Court order dated 26.02.2016 against WP(C) No. 523/2016. July 2016 Department filed SLP 26530/2016 in Supreme court challenging the Delhi HC Order dt 04.04.2016 29.08.2016 The AC (Refund) passed the OIO no. 1454/PS/2016 dated 29.08.2016 sanctioned the refund of Rs.18.38 Crores but Credited to Consumer Welfare Fund as refund claim was hit by Doctrine of unjust enrichment. 11.02.2019 Against the OiO dated 29.08.2016, the party filed appeal on 03.11.2016 with Commissioner (Appeal) and the Commissioner (Appeal) passed OIA no. 664/2019 dated 11.02.2019. The Commissioner has held that the appellants are entitled for refund of Rs.18.38 cores and remanded the case back to adjudicating authority with a direction to pass fresh order on the basis of CA certificate and other documents. 16.05.2019 Department filed appeal no. C/51109/2019-Cus (DB) against OIA no. 664/2019 dated 11.02.2019. 24.06.2019 On the basis of OiA dated 11.02.2019, the refund of Rs.18.38 crores was sanctioned by AC (Refund) vide OIO no. 101/VP/2019 dt. 24.06.2019 Subject to outcome of departmental appeals in (a) Hon'ble Supreme Court SLP No. 31561/2017 ....
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.... appeal No.C/50825/2024 for Rs 35.89 cr Date Event Details 2014-2015 Bs/E importing mobile phone handsets of CTH 8517 with payment of Additional Duty of Customs @ 6%/ 10%/ 12.5%. S. No. 263A of Notification No.12/2012 dated 17.03.2012 r.w. amendments. 26.03.2015 Hon'ble Supreme Court judgement in the matter of SRF Ltd, 2015 (318) ELT, 607 (SC) 31.07.2015 Consequent to above judgement, appellant filed consolidated refund application on the basis of claim of Additional Duty of Customs @ 1% or 2%. S. No. 263A of Notification No.12/2012 dated 17.03.2012 r.w. amendments and S. NO. 132 of Notification no. 01/2011 CE dated 01.03.2011 as amended. 14.01.2016 OIO no 2195/SK/2015 dt 14.01.2016:- Refund for Rs.35.89 crores was rejected by relying upon M/s Priya Blue Industries Ltd. Vs. Commissioner [2004(170)ELT A 308(SC)] as the Bs/E were not reassessed. 04.04.2016 Against the aforesaid refund rejection order, the party filed WP No. 2802/2016 before Hon'ble Delhi High Court for the imports during the period from July to August, 2014. ....
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....before Hon'ble CESTAT C/50825/2024 6. From the above it is clear that: a) OIO dt.19.01.2016: The Order -in Original no 2304/SK/2015 dt 19.01.2016:- Refund for Rs.18.38 crores was rejected by relying upon M/s Priya Blue Industries Ltd. Vs. Commissioner [2004(170)ELT A 308(SC)] as the Bs/E were not reassessed. b) OIO 26-08-2016: The AC (Refund) passed the OIO no. 1372/PS/2016 dated 26.08.2016 sanctioned the refund of Rs. 35.89 Crores but Credited to Consumer Welfare Fund as refund claim was hit by Doctrine of unjust enrichment. c) OIO 14-02-2019: Against the OiO dated 29.08.2016, the party filed appeal on 03.11.2016 with Commissioner (Appeal) and the Commissioner (Appeal) passed OIA no. 666/2019 dated 14.02.2019. d) DEPARTMENTAL APPEAL: Department filed appeal no. C/51110/2019-Cus (DB) against OIA no. 666/2019 dated 14.02.2019 e) OIO dt. 24.06.2019-On the basis of OIA dated 11.02.2019, the refund of Rs.35.89 crores was sanctioned by AC (Refund) vide OIO no. 102/VP/2019 dated 24.06.2019 f) OIA dt.01-03-2024: On departmental appeal against the Allowed the Departmental appeal and set aside the impugned OIO no. 102/VP/2019....
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.... the Revenue made the following submissions during the hearing before us. a) Appeal for re assessment not filed:-As per Section 2 (2) of CA' 62, assessment means "....includes..... self-assessment....". If importer is aggrieved of the assessment (including his own self-assessment), then as per Sec 128 the importer should have filed an appeal with Commissioner (Appeals) against such assessment within 60 days. In the instant case no such appeal has been filed. b) Refund Application :- The Refund Application is filed with proper officer for refund i.e. Assistant Commissioner (Refund). He can only process refund claim. As per Law of Comity, only the proper officer who has done the assessment or verification of Assessment (in case of self-assessed Bs/E) can only do the re-assessment. c) Requirement of Re-assessment before refund: The judgment in ITC Ltd. v. CCE Kolkata [2019 (368) ELT 216] (henceforth referred as "ITC Judgement")reinforces the stance that processing of a refund application cannot be done without reassessment. The Hon'ble Supreme Court in ITC judgement has stated that self assessment done by the importer is also an assessment. If the importer h....
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.... A. Requirement of Re-assessment before refund and B. Unjust enrichment 13. Requirement of Re-assessment before refund. In this context, we take note of the judgment in ITC Ltd. v. CCE Kolkata [2019 (368) ELT 216] states as follows: "12. In the case of Union of India & Ors. v. Micromax Informatics Ltd., the respondents (i.e. Micromax Informatics Ltd.) had imported mobile handsets including cellular phones during the period 30-7-2014 to 29-8-2014. At the time of customs clearance, they paid Additional Customs Duty (CVD) under Section 3(1) of the Customs Tariff Act, 1975 at the rate of 6%. In all, the imports bills of entry were self-assessed by the respondents in terms of the Self-Assessment Scheme under Section 17 of the Act and were thus finally assessed. This Court in M/s. SRF v. Commissioner of Customs, Chennai - 2015 (318) E.L.T. 607 (S.C.) held that for quantification of CVD in case of an article that has been imported, it has to be presumed that the said imported article has been manufactured in India and then the amount of excise duty leviable thereon has to be ascertained for determining the extent of exemption from payment of CVD to which....
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....ction 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union of India - 2009 (240) E.L.T. 490 (Bom.) though the High Court interfered to direct the entertainment of refund application of the duty paid under the mistake of law. However, it was observed that amendment to the original order of assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. (supra) 47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the orde....
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.... and void, the Departmental Appeals no's. C/51109/2019-Cus (DB) against OIA no. 664/2019 dated 11.02.2019. and appeal no. C/51110/2019-Cus (DB) against OIA no. 666/2019 dated 11.02.2019 stand automatically upheld. 16. On the basis of OIA dated 11.02.2019, the refund of Rs.18.38 crores was sanctioned by AC (Refund) vide OIO no. 101/VP/2019 dated. 27.06.2019 subject to certain conditions. Similarly, on the basis of OiA dated 11.02.2019, the refund of Rs.35.89 crores was sanctioned by AC (Refund) vide OIO no. 102/VP/2019 dated 27.06.2019 subject to certain conditions. When Commissioner (Appeal)'s OIA no. 664/2019 dated 11.02.2019 and OIA no. 666/2019 dated 11.02.2019 became null and void, the refund orders passed on the basis of these OIAs namely OIO no. 101/VP/2019 dated 27.06.2019 and OIO no. 102/VP/2019 dated 27.06.2019 also became null and void. The Department filed appeals against OIO 101/VP/2019 dated 27.06.2019 and OIO no. 102/VP/2019 dated 27.06.2019. The Commissioner (Appeals) passed OIA No CC(A)/Cus/D-I/Import/NCH/5130/2023-24 dated 01.03.2024 and OIA No CC(A)/Cus/D-I/Import/NCH/5129/2023-24 dated 01.03.2024. Once OIO no. 101/VP/2019 dated 27.06.2019 and OIO no. 102/VP/20....
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.... only under Section 17(3)(4) and (5) of the amended provisions" (ii) "in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act." (iii) "The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re- assessment proceedings at all." (iv) "the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings". Thus the refund claim filed by Micromax without getting the reassessment done, is not legal and proper. Para 44 of ITC judgement clearly says that "While processing a refund application, re-assessment is not permitted nor conditions of exemption can be adjudicated". 21. The Refund Application is filled with the proper officer for refund i.e. Assistant Commissioner (Refund), who can only process the refund claim. The said para 44 of ITC judgement clearly says that "It will virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while deali....
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.... in accordance with the provisions of Section 11B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it." (emphasis supplied) 24. The learned Authorized Representative for the Revenue has stated that CBIC circulars are binding on the Officers. The CBIC Circular No. 24/2004-Cus dated 18.03.2004 clearly states that a refund claim is not maintainable when the assessment order is final and not challenged. Thus we hold that the adjudicating officers were right in rejection of the refund claims. 25. We also take note that the Hon'ble Supreme Court has time and again held in Priya Blue Industries Ltd. v. Commissioner [2004 (172) E.L.T. 145 (S.C.)] and Collector v. Flock (India) Pvt. Ltd. [2000 (120) E.L.T. 285 (S.C.)] that re-assessment of Bill of Entry is mandatory before filing refund. The Revenue was permitted to implead these additional ground on the basis of Supreme court decision in the case of ITC, which was permitted vide Misc Order 50175-176/2023 dated 03.07.2023. Therefore, it is not the case that Micromax was not aware that re-assessment of Bill of Entry was mandatory before filing the....
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....ts". He has also examined the CA certificate and discussed the same in OIO that (i) The price of the goods for the period prior after the judgement on the basis of his refund disclaim remained constant. (ii) The custom duty has not been recovered from their customers separately in any manner (iii)The prices were constant and were not variable depending upon the extent of duty and (iv)The position has also been certified by several buyers, in the certificates issued by them. We are in agreement with the observations. 30. It may be noted that the onus to prove that the duty has not been passed on is on the applicant for refund i.e. Micromax . They have failed to demonstrate that duty has not been passed on. We do not agree with the observation of Commissioner (Appeal) in OIAs dated 11.02.2019 that refund amount is not shown in Book of Accounts and Annual Balance Sheet for FY 2014-15 due to "Principle of conservation". As the Departmental appeal was pending at that time of passing of the said OIAs dated 11.02.2019, the Commissioner (Appeal) could have awaited the disposal of Departmental Appeal or decide both together, which is not the case. The Bills of Entry for importing mobile ....
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....on'ble Supreme Court judgement in the case of MAFATLAL INDUSTRIES LTD. Versus Union of India [1997 (89) E.L.T. 247 (S.C.) [19-12-1996]] . The para 99(iv) of the judgement is reproduced: "(iv) It is not open to any person to make a refund claim on the basis of a decision of a Court or Tribunal rendered in the case of another person. He cannot also claim that the decision of the Court/Tribunal in another person's case has led him to discover the mistake of law under which he has paid the tax" nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment of levy has become final in his case, he cannot seek to reopen it nor can he claim refund without re-opening such assessment/order on the ground of a decision in another person's case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well established principles of law. It also leads to grave public mischief. Section 72 of the Contrac....
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....n appeal under a particular heading in the Customs Tariff, every importer of identical goods in the country cannot seek consequential refund of duty. Conversely, if the classification of the good in the appeal increases duty, the department cannot automatically recover differential duties from all importers. This is the law laid down by the Supreme Court in Mafatlal Industries 1997 (89) E.L.T. 247 (S.C.) 2002-TIOL-54-SC-CX-CB." (emphasis supplied) 35. Considering all the above, pronouncements, we are of the opinion that claiming refund on the basis of SRF judgement by itself is not sustainable. Consequently, the refund claims of Rs.18.38 crores sanctioned by AC (Refund) vide OIO no. 101/VP/2019 dated 27.06.2019 and the refund of Rs.35.89 crores sanctioned by AC (Refund) vide OIO no. 102/VP/2019 dated 27.06.2019 are not on sound footing. We note that the Department has filed appeals against these two OIOs. The Commissioner (Appeal) vide OIAs dated 01-03-2024, allowed the Departmental appeal and set aside the impugned two OIOs dated 27.06.2019. The party Micromax have filed two appeals viz., C/50824/2024 and C/50824/2024 against OIAs dated 01-03-2024. In view of our discu....