TaxTMI 
TaxTMI 
2026 (8) TMI 1015
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....ax Appeal No. 588 Of 2026 With R/Tax Appeal No. 589 Of 2026 With R/Tax Appeal No. 590 Of 2026 With R/Tax Appeal No. 591 Of 2026 With R/Tax Appeal No. 592 Of 2026 With R/Tax Appeal No. 593 Of 2026 With R/Tax Appeal No. 594 Of 2026 With R/Tax Appeal No. 595 Of 2026 With R/Tax Appeal No. 596 Of 2026 With R/Tax Appeal No. 597 Of 2026 With R/Tax Appeal No. 598 Of 2026 With R/Tax Appeal No. 599 Of 2026 With R/Tax Appeal No. 600 Of 2026 With R/Tax Appeal No. 601 Of 2026 With R/Tax Appeal No. 602 Of 2026 With R/Tax Appeal No. 603 Of 2026 With R/Tax Appeal No. 604 Of 2026 With R/Tax Appeal No. 605 Of 2026 With R/Tax Appeal No. 606 Of 2026 With R/Tax Appeal No. 607 Of 2026 With R/Tax Appeal No. 608 Of 2026 With R/Tax Appeal No. 609 Of 2026 With R/Tax Appeal No. 610 Of 2026 With R/Tax Appeal No. 611 Of 2026 With R/Tax Appeal No. 612 Of 2026 With R/Tax Appeal No. 613 Of 2026 With R/Tax Appeal No. 614 Of 2026 With R/Tax Appeal No. 615 Of 2026 With R/Tax Appeal No. 616 Of 2026 With R/Tax Appeal No. 617 Of 2026 With R/Tax Appeal No. 618 Of 2026 With R/Tax Appeal No. 619 Of 2026 With R/Tax Appeal No. 620 Of 2026 With R/Tax Appeal No. 621 Of 2026 With R/Tax Appeal No. 622 Of 2026 With R/Tax Appeal ....
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.... R/Tax Appeal No. 695 Of 2026 With R/Tax Appeal No. 696 Of 2026 With R/Tax Appeal No. 697 Of 2026 With R/Tax Appeal No. 698 Of 2026 With R/Tax Appeal No. 699 Of 2026 With R/Tax Appeal No. 700 Of 2026 With R/Tax Appeal No. 701 Of 2026 With R/Tax Appeal No. 702 Of 2026 With R/Tax Appeal No. 703 Of 2026 With R/Tax Appeal No. 704 Of 2026 With R/Tax Appeal No. 705 Of 2026 With R/Tax Appeal No. 706 Of 2026 With R/Tax Appeal No. 707 Of 2026 With R/Tax Appeal No. 708 Of 2026 With R/Tax Appeal No. 709 Of 2026 With R/Tax Appeal No. 710 Of 2026 With R/Tax Appeal No. 711 Of 2026 With R/Tax Appeal No. 712 Of 2026 With R/Tax Appeal No. 713 Of 2026 With R/Tax Appeal No. 714 Of 2026 With R/Tax Appeal No. 715 Of 2026 With R/Tax Appeal No. 716 Of 2026 With R/Tax Appeal No. 717 Of 2026 With R/Tax Appeal No. 718 Of 2026. Appearance: For the Appellant(s) No. 1: Mr Utkarsh R Sharma (6157). For the Opponent(s) No. 1: Rahul L Gajera (9399). ORAL ORDER (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned Senior Standing Counsel Mr. Utkarsh R. Sharma for the appellant and learned advocate Mr. Rahul L. Gajera for the respondent. 2. This group of appeals are filed by the appel....
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....gar following the order of the CESTAT passed the Final Assessment Order dated 20.03.2024 assessing the bunker tanks containing oil to be treated as part of vessel's machinery and the oil contained in the tanks to be classified under CTH 89.08 along with the vessel, as covered under Para 2(b) of Circular no. 37/95-Cus. dated 03.07.1996. Accordingly, the Bill of Entry was finally assessed to duty of Rs. 23,98,80,229/-as per the final assessment order. 8. The respondent assessee thereafter submitted certificate issued by the Chartered Accountant dated 03.04.2024 along with refund claim of the excess duty deposited by the assessee stating that incidence of customs duty paid on bunker oil and fuels was not passed on to any buyer of the bunker oil or any other person resulting into unjust enrichment. It was also contended by the respondent assessee that unjust enrichment would not be applicable in the facts of the case in view of the provisions of sub-section (2) of Section 27(g)(ii) of the Act which was inserted by section 92 of the Finance Act, 2017 with effect from 31.03.2017. 9. However, the refund claim filed by the respondent was rejected by the department in all similar ....
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.... position that debit of the duty amounts to expenses without corresponding addition in the import price to arrive at the local sale price which would mean that the assessee absorbed and had borne the incidence of duty which cannot lead to the conclusion that the same was passed on to the customers. 15. Considering such undisputed fact the CESTAT observed that the respondent has not added the duty amount to the import price to arrive at the local sale price, but in fact, the local sale price was below the import price on which the duty was assessed and merely because the duty was debited to expenses, it cannot be said that the incidence thereof was passed on to the buyers. 16. The CESTAT also negatived the ground raised by the department regarding the failure on part of the assessee to produce Chartered Accountant certificate in the format provided along with the financial record i.e. copy of Audited Balance Sheet, Sales invoices etc. to come to the conclusion that the duty paid was shown as expenditure and formed part of Profit and Loss account of the assessee and therefore, it was presumed that the assessee themselves had treated the refund amount due as expenditure and not ....
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.... which the duty was assessed. 13. Considered. This court finds force in the relevance of case law cited by the appellant. In the peculiar situation of this case when the goods have been eventually sold at price far less than the assessed values of the goods. This Court particularly finds that this matter is covered by 2015 (347) ELT 637 (Tri- Del.) in the matter of Business Overseas Corporation Vs. C.C.E (Import And General) New Delhi wherein by majority view it was held that the goods imported and sold at a loss that is when cost price was more than the sale price during the period in dispute and same fact was certified by Chartered Accountant. The importer has duly discharged burden of proof by producing Chartered Accountant's Certificate, burden shifted to revenue to prove recovery of extra cost from the Customers by producing more evidence. Revenue has failed to advance any evidence to rebut Chartered Accountant's Certificate. 13.1 This Court finds that the situation is no different in this case. Therefore, the majority view of the case (cited supra) shall apply to the facts and circumstance of this case also. And once the Chartered Accountant Certificate has ....
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....section 27 of the Act mandates on the importer to produce such documents or other evidence while seeking refund to establish that the amount of duty in relation to which such refund is claimed, has not been passed on by him to any other person. 21. It was therefore, submitted that CESTAT has committed an error in relying on the certificate issued by the Chartered Accountant to shift the onus to the department. 22. It was submitted that in view of provisions of section 27(2) of the Act, the assessee claimants were required to submit necessary documents in support of the refund claim that incidence of the duty had not been passed on to any other person and merely submission of the Certificate issued by the Chartered Accountant wherein it was stated that incidence of the customs duty paid on the bunker have not been passed on to any other person neither discloses the details of the supporting documents on the basis of which the certificates were issued nor financial records i.e. copy of audited balance sheet, sales invoices etc. were provided. It was submitted that the Chartered Accountant Certificate even did not mention the amount claimed as refund as "receivable" in the balan....
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....shifts the onus to the department if such certificate is based upon the documents which are placed on record. 26. It was submitted that CESTAT has not only relied upon the certificate issued by the Chartered Accountant but also additional factum of selling bunker oil below the import cost which was also placed on record. 27. Learned advocate Mr. Gajera further referred to and relied upon the following decisions of this Court: 1) Kuehne Plus Nagel Pvt. Ltd. v. Union of India (Judgment dated 26.03.2025 passed in Special Civil Application No.13427 of 2024). 2) Jupiter Comtex Pvt. Ltd. v. Union of India (Judgment dated 14.02.2024 passed in Special Civil Application No.1280 of 2024). 28. It was submitted that in case of Kuehne Plus Nagel Pvt. Ltd. v. Union of India (supra), this Court has referred to the decision of Hon'ble Apex Court in case of Union of India v. Mangal Teaxtile Mills (P.) Ltd. reported in 2011 (269) E.L.T. 3 (SC) and submitted that the Hon'ble Apex Court has held that the certificate issued by the Chartered Accountant based on the documents on record is binding up on the adjudicating authority, hence the issue is squarely covered in favour of....