2023 (9) TMI 1267 - AT - Customs

Refund of excess amount paid over and above 1% of CVD - incidence of duty or interest passed on to customers or not - violation of principles of unjust enrichment - HELD THAT - Under Section 28D of the Customs Act, there is a presumption as to the duty incidence having been passed to the customer. However, such a presumption is rebuttable and cannot be treated as absolute in the circumstances that the assessee produces sufficient documentary evidence to show that the incidence of duty has not, in fact, been passed on to the customer. It is pertinent that invoices clearly evidence that CVD has in fact not been recovered from the buyers. As no other alternate means of recovery of CVD is available, in the event the same is not reflected on the sale invoice, it cannot be presumed that the incidence of duty has infact, been passed onto the buyers because the sale price before as well as after the reassessment remained the same. The sale invoices produced by the appellants have rightly been considered. Once those were produced, the onus stands shifted upon the department to falsify those documents but there is no other document produced by the department. The findings of original adjudicating authority are therefore rightly held to be presumptive in nature in para 5.11 of the impugned order. In the light of documents and respective discussion, we find no reason to differ with the findings of Commissioner (Appeals). We also support the observation of Commissioner (Appeals) that Chartered Accountant s/Auditor s certificate has wrongly been ignored by the original adjudicating authority. Reliance placed upon the decision of Hon ble High Court of Delhi in the case of YU TELEVENTURES PVT. LTD. VERSUS UNION OF INDIA OTHERS 2017 (8) TMI 12 - DELHI HIGH COURT , Wherein it was held that once the Chartered Accountant s certificate certifies that the incidence of CVD duty on import was not passed on to customers, it is sufficient to rebut the presumption of unjust enrichment. Though the department has laid emphasis upon the decision of Hon ble Apex Court in Mafatlal Supra case but we observe that Hon ble Apex Court has laid down that the person claiming refund or restitute has to establish loss or injury to him i.e. if person claiming refund has passed on the burden of duty to another and has not really suffered any loss or injury, question of reimbursing him does not arise. He even cannot successfully sustain an action of restitution even under Section 72 of Indian Contract Act - In the present case, the appellant has proved that burden of excess CVD paid has not been included in sale price, question of passing the amount claimed does not arise. Hence the said decision is not applicable to the facts of present case. There are no infirmity in the order of Commissioner (Appeals). The refund claims were sanctioned by the original adjudicating authority itself. Those were diverted to the Consumer Welfare Fund solely on the presumptive ground of unjust enrichment. The order under challenge has reasonably well explained that the assessee has not at all been enriched unreasonably as no burden of enhanced CVD paid was found to have been passed on to the buyers of imported goods. All the appeals by the department stands dismissed.

Summary

Issues Involved:

1. Eligibility for refund of Countervailing Duty (CVD)
2. Unjust enrichment and whether the burden of CVD was passed to buyers
3. Interest on delayed refund

Summary:

1. Eligibility for Refund of Countervailing Duty (CVD):
The appellant imported mobile handsets during 2014-15 and paid CVD at a higher rate without claiming exemption, resulting in an excess payment of Rs. 203,14,84,231/-. Following the Supreme Court judgment in M/s. SRF Ltd. Vs. Commissioner of Customs, Chennai, the appellant filed five refund applications. The department initially took no action, prompting the appellant to file a Writ Petition. The High Court directed the department to process the refund claims, leading to the issuance of five Orders-in-Original, which sanctioned the refund but directed it to the Consumer Welfare Fund due to the appellant's failure to discharge the burden of unjust enrichment.

2. Unjust Enrichment and Whether the Burden of CVD was Passed to Buyers:
The core issue was whether the appellant had passed on the burden of CVD to customers, thus being unjustly enriched if the refund was granted. The department argued that the appellant failed to prove that the burden was not passed on, citing the presumption under Section 28D of the Customs Act. The appellant countered by presenting sale invoices, annual audited accounts, and a Chartered Accountant's certificate to show that the CVD was not recovered from buyers. The Commissioner (Appeals) found these documents sufficient to rebut the presumption of unjust enrichment, noting that the sale price remained unchanged before and after reassessment. The Tribunal upheld this view, emphasizing that the department did not provide contrary evidence.

3. Interest on Delayed Refund:
The Commissioner (Appeals) also directed the payment of interest on the delayed refund, which was contested by the department. The Tribunal noted that the original adjudicating authority had sanctioned the refund but directed it to the Consumer Welfare Fund based on a presumptive ground of unjust enrichment. The Tribunal upheld the Commissioner (Appeals)'s order, finding no unjust enrichment as the burden of enhanced CVD was not passed to buyers.

Conclusion:
The Tribunal found no infirmity in the Commissioner (Appeals)'s order, which reasonably explained that the appellant was not unjustly enriched. Consequently, the order under challenge was upheld, and all departmental appeals were dismissed. Applications for stay filed by the department were also disposed of.