TaxTMI 
TaxTMI 
2025 (11) TMI 1733
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....ms paid in excess of that authorized by law. Seemingly innocuous, because the levy stems from section 3(5) of Customs Tariff Act, 1975 enabling the Central Government to direct such payment to the extent of, and for the purpose, prescribed therein unlike the duties attached to import, viz., basic customs duty (BCD) and additional duty of customs under section 3(1) of Customs Tariff Act, 1975, from 'charging provision' in the statute. Seemingly innocuous, because the design of the levy of this indirect tax, intended by notification for burdening only on 'actual users' of imported goods, specifies, as intended, ex post facto evincing of discharge of the levy so countervailed. And seemingly innocuous, in attempting to insinuate enlarging of 'denial domain' for retention of duties not intended by law to be collected. 2. The background sets the tone for the grounds of appeal and, primarily, from the imputation that, even in the face of the claim for refund being nothing other than entitled exemption owing to the peculiar structuring of the levy, despite support by usual evidence of not having passed on the 'special additional duty (SAD)' as an indirect tax, the representative of the ....
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....ntant to suffice for a limited purpose which the lower authorities apparently chose to disregard in manner reserved for refund claims preferred on grounds of collection by mistake. It was further contended that only by inclusion of such duty in commercial invoice of further sale could it be inferred that burden of duty had been passed on for which reliance was placed on decision of the Tribunal in Commissioner of Central Excise v. NG Thakkar & Sons [2014 (301) ELT 229 (Bom)]. 4. Learned Authorized Representative submitted that the lower authorities had been led to the firm conclusion of the claims not having overcome the 'bar of unjust enrichment' from the contracts and agreements with the buyers; apparently, he had no choice but to espouse the law as the letters and agreement left no room for doubt that all duty was included in the contract value. It was pointed out that the certificate of chartered accountant did not suffice for survival of test of 'unjust enrichment' as set out in the decision of the Tribunal in Bharat Electronics v. Commissioner of Customs [2013 (2) ECS (117) (TriMUM)]. 5. The requisition for, and discard of, certification, evincing that burden of duties ....
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....ce in the case of both the Central Excises and Salt Act and the Customs Act. Once this is so, it is un-understandable how an assessment/ adjudication made under the Act levying or affirming the duty can be ignored because some years later another view of law is taken by another court in another person's case. Nor is there any provision in the Act for re-opening the concluded proceedings on the aforesaid basis..... All claims for refund ought to be, and ought to have been filed only under and in accordance with Rule 11/Section 11-B and under no other provision and in no other forum.' and to reiterate that, even if on considerations of equity and in case of tax settled as unconstitutional in matter prosecuted by a person long after assessment of another person was finalized, the contractual consequence of altered duties would require the claimant to establish burden of the levy having been borne without passing it on to be entitled to receive refund thereto in much the same way, as the amended section 11B of Central Excise and Salt Act, 1944, was found to be not violative of the constitution, prescribed. 6. Every tax paid, even upon ceasing to be a levy - owing to sanctificatio....
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....e affirmation of the enactment itself and the machinery provisions thereof as applicable in the situations envisaged therein. 8. Though both customs and central excise are indirect levies, the intersection of duty payment and passing on of liability concurrently is built only into the latter with clear disaggregation of duty liability on occurrence of the taxable event and refund, not unnaturally, claimed after possession of goods have passed on to the buyer; moreover, with the assessee having merely to establish that nothing beyond the value assessed to duty was received from the buyer, further transactions were not relevant to be entitled for sanction of the refund amount. Per contra, the loss of identity of the collected amount as 'duties of customs', in any further transaction, places the importer claiming refund in more trying conditions than an assessee under Central Excise Act, 1944 which, considering the additional burden of duties of excise on imported goods, is discriminatory. Consequently, in refunds under section 27 of Customs Act, 1962, the evaluation of 'unjust enrichment', inevitably, turned out to be about appropriateness of price charged on buyer that, in the ab....
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....toms Tariff Act, 1975 did not exist till 2005 and its predecessor levy under section 3A of Customs Tariff Act, 1975 not till 1998; the levy itself was intended to mirror the tax on sale of commodities in List II of Seventh Schedule to the Constitution. Unlike other levies burdening imports, 'special additional duty (SAD)' was to be fastened on imports which are captively consumed and exempted for those intended to be traded. It is not a case of levy that is illegal or unconstitutional to which the decision in re Mafatlal Industries Ltd unequivocally is made applicable. It is a case of exemption that, instead of being availed upfront, was, owing to peculiarities of oversight, to be reclaimed after discharge of appropriate liabilities on sale. That it was referred to as 'refund' in the relevant exemption notification does not clothe it, in the absence of definition for the expression in section 2 of Customs Act, 1962, as refund intended by section 27 of Customs Act, 1962. Indeed, the claim is preferred against exemption notification issued under section 25 of Customs Act, 1962 and nowhere does that notification impose any condition of compliance with section 27 of Customs Act,1962 fo....