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2025 (2) TMI 566 - AT - CustomsRefund claim for excess Countervailing Duty (CVD) paid - applicability of the principle of unjust enrichment - appellant passed on the incidence of the duty to the buyers or not - rejection also for want of reassessment - principles of unjust enrichment. Refund claim for excess Countervailing Duty (CVD) paid - HELD THAT - The refund claim in the present case is with respect to the excess CVD as was paid at the time of import of the mobile phones in the Year 2014. The claim has been filed in the Year 2019 pursuant to the judgment of Hon ble Supreme Court in the case of M/s. SRF Ltd. 2015 (4) TMI 561 - SUPREME COURT - in any refund application on any ground whatsoever the same is required to be filed within one year from the date when the duty/excess duty the refund whereof is claimed was paid. The second proviso clarifies that one year limitation shall not apply if the duty/excess duty was paid under protest. The appellant otherwise has taken the plea the duty at the rate of 6% was paid under protest which otherwise was to be deposited at the rate of 1%. But there are no document on record to corroborate and justify the said testimony. There are no fault when it has been held that the refund claim was filed much after the completion of one year from the date of payment of duty ass well as from the date of order of Hon ble Supreme Court in SRF Ltd. The order to that extent is therefore hereby upheld. Rejection for want of reassessment - HELD THAT - It is observed that vide the same letter vide which the impugned claim was filed i.e. the letter dated 25.11.2019 the appellant had requested for amendment of 77 number of Bills of Entry which were of the impugned Bills of Entry. Apparently and admittedly the said request has been rejected. Admittedly there is no challenge to the said rejection by the appellant. The outcome remains is that the Bills of Entry though were self-assessed but have not got modified/amended/reassessed prior filing of the impugned refund claim - the grounds of grievance raised by the appellant against the impugned order are not sustainable. The order under challenge is therefore found no infirmity to this extent also. Rejection on the ground of unjust enrichment - presumption about incidence of duty passed on to the buyer or not - HELD THAT - HELD THAT - The claims of refund except where provision is held unconstitutional is to be preferred and adjudicated upon either under Section 11B of Central Excise Act 1944 or under Section 27 of Customs Act 1962. It shall be incumbent for the claimant to establish that the burden of duty has not been passed on to third party. The refund claim shall not be maintainable nor even by way of a civil suit the only possible remedy of that under Article 226 before Hon ble High Court or under Article 32 before the Hon ble Apex Court - the law of land and in absence of any evidence other than the afore observed incomplete C.A. Certificate to discharge the burden there are no reason to differ with the findings arrived at by Commissioner (Appeals). Conclusion - i) Refund claims under Section 27 of the Customs Act require adherence to the one-year limitation period unless duty was paid under protest which must be substantiated with evidence. ii) Reassessment or amendment of self-assessed Bills of Entry is a prerequisite for processing refund claims under Section 27. iii) The principle of unjust enrichment applies to refund claims and claimants must provide substantial evidence to prove that the duty incidence was not passed on to buyers. Appeal dismissed.
ISSUES PRESENTED and CONSIDERED
The primary issues considered in this judgment include:
ISSUE-WISE DETAILED ANALYSIS 1. Refund Claim under Section 27 of the Customs Act, 1962 The appellant sought a refund of excess CVD paid, invoking Section 27 of the Customs Act, which mandates that refund claims be filed within one year of duty payment unless the duty was paid under protest. The appellant argued that the duty was paid under protest due to the unavailability of a relevant exemption notification on the ICEGATE Portal at the time of payment. Legal Framework and Precedents: Section 27 outlines the conditions for refund claims, emphasizing the one-year limitation unless the duty was paid under protest. The appellant cited the Karnataka High Court's decision in DHL Express India Pvt. Ltd. to support their position. Court's Interpretation and Reasoning: The Tribunal found no documentary evidence supporting the appellant's claim of having paid the duty under protest. The Tribunal noted that the appellant's refund claim was filed significantly beyond the one-year limitation period, and the circumstances at the time of duty payment did not justify a protest. Conclusion: The Tribunal upheld the rejection of the refund claim on the basis of being time-barred, as there was no evidence of duty payment under protest. 2. Reassessment of Bills of Entry The appellant requested reassessment of the self-assessed Bills of Entry, arguing that reassessment was not mandatory for claiming a refund under Section 27. The appellant's request for reassessment was rejected without a speaking order, and this rejection was not challenged. Legal Framework and Precedents: The Tribunal referenced the Supreme Court's decision in ITC Ltd. v. Commissioner of Central Excise, which clarified that refund claims under Section 27 require prior modification or reassessment of the self-assessed Bills of Entry. Court's Interpretation and Reasoning: The Tribunal observed that the appellant's request for reassessment was rejected, and without a challenge to this rejection, the self-assessment remained final. The Tribunal emphasized that refund proceedings are not a substitute for assessment or reassessment proceedings. Conclusion: The Tribunal upheld the rejection of the refund claim due to the lack of reassessment of the Bills of Entry. 3. Unjust Enrichment The Commissioner (Appeals) raised the issue of unjust enrichment, asserting that the appellant had passed on the duty incidence to the buyers, thus barring the refund claim. Legal Framework and Precedents: Section 28D of the Customs Act presumes that the incidence of duty has been passed on to the buyer unless proven otherwise. The appellant provided a Chartered Accountant's certificate to counter this presumption. Court's Interpretation and Reasoning: The Tribunal found the Chartered Accountant's certificate insufficient to prove that the duty incidence was not passed on to the buyers. The Tribunal referenced the Supreme Court's decision in Mafatlal Industries Ltd., emphasizing the need for claimants to establish that they bore the duty burden. Conclusion: The Tribunal upheld the rejection of the refund claim due to the appellant's failure to rebut the presumption of unjust enrichment. SIGNIFICANT HOLDINGS Core Principles Established:
Final Determinations on Each Issue:
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