TaxTMI 
TaxTMI 
TaxTMI 
2025 (11) TMI 313
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....- NOI-CUSTM-000-APP-587-to-589-20-21, dated -14/09/2020 2.1 The Respondent had filed 492 Bills of Entry during the period from 19.06.2017 to 04.07.2018. Period Number of Bill of Entries filed 19.06.2017 to 30.05.2018 394 13.06.2018 to 04.07.2018 53 13.05.2018 to 30.06.2018 45 Total 492 2.2 The self declared value was rejected by the Assessing Officer and new value was re-determined. Respondent paid the duty on the reassessed value. 2.3 Being aggrieved respondent filed appeal before the Commissioner (Appeals) challenging rejection of declared value and redetermination of the value of imported goods. Commissioner (Appeals) vide Order-In-Appeal No. NOI-CUSTM000-APP-307 to 703-18-19 dated 28.08.2018, NOI-CUSTM-000-APP-1588 to 1640-18-19 dated 31.11.2018, and NOI-CUSTM000-APP- 986 to 1030-18-19 dated 31.08.2018 set-aside all reassessment orders and allowed the appeals filed by the Respondent with consequential relief. 2.4 The Respondent filed 03 separate refund claim before the Jurisdictional Deputy Commissioner (Refund), Noida Customs Commissionerate vide Memorandum Order No.62 to 64/Refund/Noida Customs/2019 dated 01.08.2019 amounting to Rs.6,....
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....No, NOICUSTM-000-APP-1641 to 1768-18-19. dated 11.12.2018 & NOI-CUSTM-000-APP-513 to 789-19-20 dated 08.07.2019. The first appellate authority as well as adjudicating authority has failed to observe that all the B/Es are pertaining to the period of GST and after 01.07.2017, IGST paid on import is admissible as input tax credit under the CGST Rules read with CGST Act, 2017. As per the Memorandum order, the party has produced a C.A. certificate certifying that "the party has reversed the applicable ITC portion of excess duty paid in Customs due to value enhanced covered under this claim". But the adjudicating authority has neither discussed about any such reversed amount in the Memorandum order nor given reference to any supporting documentary evidence for the same. Further, first appellate authority has also not discussed about any such reversed amount in the impugned Order in Appeal nor given reference of any supporting documentary evidence for the same. 3. The first appellate authority has set aside the appeals filed by the department simply stating that unjust enrichment status has been mentioned in the Certificate submitted by CA as first appellate authority has not mad....
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....------------------------------------------------ When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 103. Burden of proof as to particular fact. - The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Thus, in the instant case, onus to produce the documents in support of the Certificate issued by Charted Accountant was on the respondent but They has failed to produce the same and neither the refund sanctioning authority nor first Appellate authority examined the same. The first appellate authority grossly failed to conclude his findings regarding admissibility of the Certificate issued by Charted Accountant. 5. The first appellate authority has erred to examine the following case laws also, whereas following cases are applicable in the instant case. a). Hon'ble Apex Court in the case of Sahakari Khand Udyog Mandal Limited 2005 (181) E.L.T. 328 (S.C.) made this aspect very clear that before claiming a relief of refu....
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....und sanctioning authority." 3.1 When the matter was called none appeared on behalf of the Respondent. 3.2 In terms of Rule 21 of the CESTAT (Procedure) Rules, 1982 the Appeals have been taken up for consideration after hearing Shri A K Choudhary, Authorized Representative for the appellant revenue. 4.1 We have considered the impugned orders along-with the submissions made in the appeal and during the course of argument. 4.2 Both the impugned orders are identically worded. For the ease of reference we are referring to the order dated 16.09.2020. The impugned order records the findings as follows:- "I have carefully gone through the records of the case, appeal memos including grounds of appeal and submissions of the respondent at the time of personal hearing. Proviso to Sub-Section (2) of Section 27 of Customs Act, 1962 deals with applicability of test of unjust enrichment to the duty and interest element. I find that, taking note of the fact that excess payment of duty happened because of re-assessment of imported goods, the importer had no other option but to make the excess payment due to urgency of clearing the imported goods, which was set aside by the L&aac....
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....d claim but such Cenvat credit/ITC was duly reversed by the respondent subsequently before sanction of the refund surrendering the benefit of Cenvat Credit/ITC availed, which was duly certified by the CA. The department has not produced any cogent reason or authentic document to controvert the CA's certificate. In such a situation, the instant appeals filed by the appellant department, requiring the respondent to prove unjust enrichment, when there is a clear case of excess payment due to incorrect re-assessment made by the assessing officer, are nothing but routine and mechanical, against the spirit of law and also against the clear instruction issued by the Board in the Circular supra. 8. In the background of the facts and circumstances of the case supported by the instruction issued by the Board in the Circular supra, I find no justification to deny the refunds, already sanctioned by the adjudicating authority, on the ground of unjust enrichment and hold that the instant appeals filed by the department in this regard are liable for rejection." 4.3 Undisputedly, the Commissioner (Appeals) in the first round of litigation in both the cases had allowed the appeals f....
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....refund has not been passed on to the buyer or any other person either as such or as part of cost or as expense. 7. A detailed calculation for arriving at refund admissible to party in respect of Bills of entry wherein entire duty has been paid in cash only is enclosed as Annexure-1 to this order. Further, a detailed calculation for arriving at refund admissible to party in respect of Bills of entry wherein duty has been paid in cash as well as debited through licenses is enclosed as Annexure-2 to this order. I find that the bills of entry covered under this claim have been re-assessed by the Appraising Group on 04.10.2019. Based on the calculation enumerated in the annexure-1, I find that the party has paid duty amounting to Rs. 3,09,94,520/- in cash in excess to their actual liability as detailed in Annexure-1. I further find that the party has also paid duty of Rs.65,19,566/ in cash, in excess to their actual liability as detailed in Annexure-2. I find that other components/types of duty except IGST pertaining to Bills of entry listed in Annexure-2 has been paid through different licenses whose refund to be allowed by crediting the license concerned through which the dut....
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....worksheet or the CA's certificate cannot be accepted and what are the defects in the certificate/worksheet. On the other hand, we find that several orders have been passed by the officers of the department sanctioning refund in respect of the same appellant. In some of these cases, the very same Chartered Accountants have given the certificates and department has not even taken care to check whether those certificates are different from the present one. When the same appellant is able to get refund on the basis of very same facts, very same certificates and on the very same goods, it is not understandable how this particular case alone has been selected for special treatment. While memorandum as reproduced about sets out what should be the approach, in the very same paragraphs negates its own observation when no defects are pointed out in the worksheet/CA certificate turning observations into empty rhetoric. It is also necessary to consider the Board's circular issued in this regard. Two circulars have been issued by the Board. The first one is No. 6/2008, dated 284-2008 and the second one is No. 16/2008-Cus., dated 1310-2008. Both these circulars have specific paragraphs devoted t....
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.... been as submitted by the learned Counsel, prescribed by the Board'. Therefore, it is not open to the learned Counsel for the Revenue to contend that before this Court though the terms of the notification has not been complied with but the same has been considered and the point that was argued before the tribunal is only to prove unjust enrichment aspect. Section 28D of the Act states that there arise a presumption that the incidence of duty has been passed on to the customers. It also states that every person who has paid the duty on any goods under this 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. Therefore, it is clear that it is rebuttable presumption. To rebut such presumption, the assessee has produced auditor report required to claim the refund of special additional duty. The auditor has unequivocally stated in his report that the burden has not been passed on directly or indirectly and in coming to such conclusion, they have taken into account how the price of the traded goods has been arrived for this purpose. Therefore, such presumption stands rebutted." The appeal filed by the ....