TaxTMI 
TaxTMI 
2026 (7) TMI 1012
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.... Hon'ble Supreme Court. 2. The brief facts are, consequent to the order of the Hon'ble Apex Court dated 26.08.2015, the appellant filed a refund claim on 04.03.2016 before the office of the Additional Commissioner of Customs, Air Cargo Complex which was rejected vide Order-in-Original dated 28.11.2016 and aggrieved by said order, an appeal was filed before the Commissioner (Appeals) and Commissioner (Appeals) upheld the Order-in-Original dated 28.11.2016 as per the impugned order dated 28.11.2016. Aggrieved by said order, present appeal is filed. 3. When the appeal came up for hearing, Learned Counsel for the Appellant submits that appellant is a SEZ developer duly approved under Section 2(g) of the Special Economic Zo....
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....y on export of goods from India is against the provisions of the SEZ Act. It is therefore, declared that no export duty as would be payable for supply of goods by the parties in the DTA to the petitioners in the SEZs and all proceedings initiated in this regard are therefore liable to be quashed. However, Department filed appeals challenging the said order before the Division Bench of the Hon'ble High Court and it was also dismissed on 09.02.2011, -[2011 (267) E.L.T 28 (Kar)]. Similar views were taken by the other Hon'ble High Courts also. Though the Department had filed Civil Appeal No. 5733-5734/2023 in SLP (C) CC No. 15595-15596/2011, Hon'ble Supreme Court as per the judgment dated 26.08.2015 dismissed the batch of all civil appeals ....
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....interim order was issued by the hon'ble High Court. As regards the eligibility of the Appellant to claim the amount paid by M/s. JMC Projects India Ltd, Learned Counsel draws our attention to the certificate issued by M/s. JMC Projects India Ltd., furnishing the details of the cheque and also certified that they have recovered an amount of Rs. 75,40,742/- as mentioned above from M/s. Vikas Telecom Pvt. Ltd., vide invoice No. 31 dated 03.08.2011. Further they have confirmed and certified that they have not filed a claim seeking refund of the export duty collected from Appellant which was paid by them. They have also furnished the TR-6 challan evidencing payment of the said amount. 5. Learned Counsel....
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....ious judgments in this regard, it is categorically held that tax paid by mistake is to be returned to assessee irrespective of the period covered under the refund application. It was held that refusing to return the amount would go against the mandate of Article 265 of the Constitution of India. The issue was also considered by the Hon'ble High Court of Delhi in the matter of M/s. Tavrur Oils and Fats Pvt. Ltd. Vs. CGST - 2024 (25) CENTAX-II 311 (Del). 7. As regards rejection of the claim on unjust enrichment, Learned Counsel submits that there is no buyer to pass the burden of export duty and Chartered Accountant certificate produced by the Appellant as part of the refund claim is sufficient to prove that there is no unjust enrich....
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....therefore cannot be considered to this extent, in terms of Regulation 2 of Customs Refund Application (Form) Regulations, 1995. Section 27 of the Customs Act, 1962 envisages that it is the claimants' responsibility to establish that the amount of duty in relation to which such refund is being claimed has not been passed on by him to any other person, which has not been done in case of the instant refund claim. A mere certification from a Chartered Accountant (CA) will not suffice in such cases. Moreover, there is also an intermediary / contractor viz., M/s. JMC Projects (India) Ltd., it becomes imperative to examine if the tax burden is not passed on to any such intermediaries. Since the appellant have not furnished any evidence to this....
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.... thereafter further proceedings were initiated by issuing the show cause notice on 25.06.2016. From the evidence available on record, filing of refund claim cannot be considered as filed beyond the period of limitation. Further we find that as per the judgment of the Hon'ble Supreme Court in the matter of M/s. ITC Ltd. (supra) and judgment of Hon'ble High Court of Gujarat in the matter of M/s. Comsol Energy Pvt. Ltd (supra), the appellant is not bound by limitation prescribed under the Central Excise Act for claiming the excise duty paid by appellant since Appellant was forced to pay said amount even after issuance of stay order by Hon'ble High Court of Karnataka the Writ petition. 11. Further as regards unjust enrichment, as per the evi....