TaxTMI 
TaxTMI 
2025 (1) TMI 1783
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....1), M/s. Sai Marine Exports Pvt. Ltd. (A2), M/s. Premier Marine Products (A3) and M/s. Kader Exports Pvt. Ltd. (A4) assailing the impugned Order-in-Appeal No. 1017-1020/2013 dated 22.07.2015 passed by Commissioner of Customs (Appeals), Custom House, Chennai rejecting the refund claims of Rs.1,11,34,359/- Rs.1,06,39,247/- Rs.54,49,887/- and Rs.1,04,66,992/- respectively of A1 to A4 above, which were earlier sanctioned by the Refund Sanctioning Authority. 1.1 Similarly, Customs Appeals Nos. C/42228/2014 and C/42229/2014 have been preferred by Appellants Viz. M/s. Sagar Grandhi Exports Pvt. Ltd. (A5) and M/s. G.V.R Exports Pvt. Ltd. (A6) respectively, aggrieved by the Order-in-Appeal No. 1600&1601/2014 dated 28.08.2014 passed by Commissioner of Customs (Appeals), Custom House, Chennai for rejecting the refund claims of Rs.1,19,95,259/- and Rs.30,03,913/- respectively of A5 and A6 above, which were earlier sanctioned by the Original Refund Sanctioning Authority. 1.2 Customs Appeal No. C/40766/2015 has been filed by Appellant Viz. M/s Devi Sea Foods Ltd. (A7), aggrieved by the Order-in-Appeal No. 352/2014 dated 24.12.2014 passed by Commissioner of Customs (Appeals), Custom House, ....
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....g that cess could not be levied on the export of prawns / shrimps and relegated the matter to be resolved by the Appellate Authority. The Appellants filed similar writ petitions before the Hon'ble High Court of Madras which directed them to find remedies by filing an appeal before the appellate authority following the Apex Court's judgement. Accordingly, appeals were filed before the Commissioner (Appeals) who held that cess is not leviable on export of prawns/ shrimps as they were not fish and allowed the appeals with consequential relief of refund of cess collected on the export of prawns/ shrimps subject to verification of unjust enrichment. The Department, then preferred a batch of appeals against the impugned orders before the CESTAT which dismissed the departmental appeals in C/141-144/2004, C/295-297/2004, C/305-310/2004, C/115-132/2005 & C/136-142/2005 vide Final Order Nos. 957-961/2007 dated 02.08.2007 and 10301035/2006 dated 10.11.2006, etc. and upheld the impugned orders passed by the Appellate authorities. Against the said decisions of Hon'ble CESTAT, the department preferred appeals in CMA No. 212-223 of 2007 and 23702394 of 2007 before the Hon'ble High Court, Madras w....
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....ichment does not apply since the cess paid by the Appellants was not passed on to the foreign buyer as the amount towards cess was not received as payment from the buyer. iv. It was submitted that since it was conclusively held by the Hon'ble Supreme Court that cess cannot be levied and collected on the export of prawns/ shrimps under the Act, the levy and collection of cess was without authority of law and therefore the question of unjust enrichment does not arise. 4. The Ld. Advocates Shri R. Asokan and Shri Anil Kumar Bezawada representing the Appellants reiterated the averments in the grounds of appeal and further submitted that the findings in the impugned orders that the refund claims were hit by limitation was misplaced as the refund amount was claimed during the pendency of writ petitions before Hon'ble High Court challenging the levy of cess on exports which have to be treated as "paid under Protest" and therefore the limitation prescribed under Section 27 of Customs Act, 1962 would be inapplicable. It was also stressed that the cess paid was to be treated as deposits and for such refunds, the doctrine of unjust enrichment could not be applicable. It was pointe....
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....e eligible for refund of cess paid as payments made have to be treated as made under protest and the limitation not being applicable. 10.1 We find that M/s. Sandhya Marines Ltd. (Appellant A1) challenged the levy of Cess under the Agricultural Produce Cess Act, 1940 for Prawns / Shrimps as they are different from Fish before the Hon'ble High Court of Madras in 1998 wherein the Jurisdictional High Court directed the claimant to file an appeal before the Commissioner of Customs (Appeals). 10.2 The Commissioner of Customs (Appeals) vide C. Cus No. 348352/05 dated 29.04.2005 has held that Cess is not leviable on export of Prawns / Shrimps as they are different from the Fish. Consequently, the Appellant (A1) has filed the refund claim for Rs.1,11,34,359/- dated 11.11.2005 for the Shipping Bills covered during the period from 1998-2005 which was rejected by the Deputy Commissioner of Customs (Refunds) on the grounds of time-bar and also for non-production of original shipping bills. 10.3 Against the rejection of Refund Claim, the Appellant (A1) has preferred an appeal before the Commissioner of Customs (Appeals) who vide Order-in-Appeal No. C.Cus.319/2006 dated 28.04.2006 has....
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....le under the Customs Act, 1962 and as such it has to be considered as a deposit made to the Customs. The Deputy Commissioner of Customs (Refunds) has sanctioned their refund claim for Rs.1,11,34,359/- by the Order-in-Original No. 15029/2011 dated 01.03.2011. The Department again filed an appeal before the Commissioner of Customs (Appeals) and raised the issue of the limitation and also the principle of unjust enrichment. The Department was of the view as revealed from the Review Order that the Chartered Accountant had not categorically stated how the burden of tax not passed on to the ultimate buyer. The Commissioner (Appeals) in his common order vide Order-in-Appeal Nos. 1017 to 1020/2013 dated 22.07.2013 has set aside the Orders of the Original Refund Sanctioning Authority with a direction to recover the already sanctioned refund amounts with interest. 11.1 Similarly, M/s. Sai Marine Exports P. Ltd. (Appellant A2) has challenged the levy of Cess on export of Prawns / Shrimps under the Agricultural Produce Cess Act, 1940 before the Hon'ble High Court of Madras in 1998 wherein the jurisdictional High Court directed the claimant to file an appeal before the Commissioner of Custom....
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.... the Order-in-Original No. 15030/2011 dated 01.03.2011. The Department again filed an appeal before the Commissioner of Customs (Appeals) raising the issue of the limitation and also the principle of unjust enrichment. The main ground raised by the Revenue as could be seen from the Review Order was that the Chartered Accountant had not categorically stated how the burden of tax has not been passed on to the ultimate buyer. As such, the Commissioner (Appeals) in his common order vide Order-in-Appeal Nos. 1017 to 1020/2013 dated 22.07.2013 has set aside the Orders of the Original Refund Sanctioning Authority with a direction to recover the already sanctioned refund amounts with interest. 12. M/s. Premier Marine Products (Appellant A3) has also challenged the levy of Agriculture Produce Cess on export of Prawns / Shrimps vide W.P. No 17526 of 1998 before the Hon'ble High Court of Madras stating that the levy of Cess was not attracted for Prawns / Shrimps as the said product was not included in the schedule annexed to the said Act. 13. M/s. Kader Exports Pvt. Ltd. (Appellant A4) has similarly challenged before the Hon'ble High Court of Madras by filing W.P. 17544 of 1998 regardin....
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....was filed against shipping bill no.1840827 dated 16.06.04 before the Commissioner (Appeals) on 05.08.04, the cess paid by the appellant after the said shipping bill on this issue are to be treated as being paid "under protest" and the issue treated as having attained finality with the passing of the above said Order-in-Appeal. The time limit would have to be determined accordingly. As stated by the Apex Court in the judgement in the case of Mafatlal Industries Ltd Vs. VOI (1997 (5) SCC 536), duty paid in cases, which finally end in orders or decrees or judgements of Courts, must be deemed to have been paid under protest. 20. The Hon'ble Apex Court in the case of Mafatlal Industries Limited Vs Union of India [1997 (89) ELT 247 (SC)], has held as follows: - "113. In this batch of cases, the claims by different assessees for refund of excise duty paid by them under mistake of law arise over a period of years, and the claims were made in different proceedings - before the departmental authorities by way of civil suits and writ petitions under Article 226 of the Constitution, which are in appeal before us. Broadly, the basis for the various refund claims can be clas....
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.... any way. It is also a colourable piece of legislation and must be struck down. 301. Section 11D imposes unreasonable restriction on the right to carry trade and violates Article 19(1) (g). Excise authority cannot deny the manufacturer the freedom to commerce and trade and take away a portion of the contract price even without raising any demand or giving any hearing. The Excise Officer cannot under any circumstance give the balance to the ultimate consumer or credit the amount to the Fund. Section 11D is arbitrary and is a colourable piece of legislation and is hereby struck down. 302. Sections 12C and 12D are parts of a device to withhold refunds of unlawfully gathered tax. These provisions are also violative of Article 265 of the Constitution. 303. I express my respectful agreement with the views expressed by my learned Brother Paripoornan, J. that an action by way of a suit or writ petition will be maintainable, depending upon the facts and circumstances of the case. I am entirely in agreement with the views expressed by him and the reasoning on points `E', `F' and `G' of the concluding part of his judgment. I also agree with my learned brother Paripo....
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....reign buyers. All these Certificates were categorical in stating that Agricultural Produce Cess was not added to the price of exports. As such, all these appellants have to be treated to have proved that the incidence of AP Cess has not been passed on to their importers / foreign buyers. Relying on these Chartered Accountants Certificates issued separately i.e., (i) for the Appellant (A1) was issued by M/s. Sarpararu & Associates dated 14.08.2006 for the period from 1998-2005, (ii) for the Appellant (A2) was issued by M/s. Chowdary & Rao dated 04.09.2006 for the period from 1999-2004, (iii) for the Appellant (A3) was issued for the period from 2000-2005, (iv) for the Appellant (A4) was issued by Mr. Rajan Verghese Chacko dated 03.11.2006 for the period from 2000-2005, (v) for the Appellants (A5&A6) were issued by M/s. Abraham & Philip dated 18.05.2011 for the period from 1998-2005 and (vi) for the Appellant (A7) for the period from 1999-2005, the Refund Sanctioning Authority has held that refund claims filed were eligible for sanction. 26. In view of the above detailed discussion and findings, the impugned Orders-in-Appeal No....
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....the appellant has collected the refund amount. GVR Exports Pvt.Ltd. 28.02.2007in Ord. in Appeal No. C50/72, 73,90,93/0/ 2007 Sea C.Cus. No. 127 to 131 /07 11.11.2005 Rs. 30.03.913/- .07.2011 D.C (refunas), Ordered C/42229/201 4 Refund andthe appellant has collected the refund amount. Order passed by D.C. 1 1 ! ! refund I) Barred by Limitation, ii) Non the order collected - refund 1 holding that claim not production of Original documents Document 2 A.RBALA KRISHNA GOVINDHA A.Com., ACA hartered Accountant # 17-5-238, Mutras Colony, Gavarla. Anakapalli, Thatada Post, Munagapaka, Visakhapatnam-531002. Andhra Pradesh e-mail :[email protected] Ph : +91-88856 53008, +91-94949 18539 -- - To, The Assistant Commissioner of Customs (Refunds), Commissionerate-IV (Exports) uustoms House, No 60, Rajaji Salai, Chennai, Tamil Nadu - 600001. + Dear Sir, Sub: Certificate that no A.P. Cess burden passed on- A.P. Cess paid on Export of Shrimp during the period from FY 1998-99 to FY 2004-05 - M/s. Devi Sea Foods Limited. I, CA P BALA KRISHNA GOVINDHA, Proprietor of M/s. P BALA KRISHNA GOVINDHA & CO verified the P....