2017 (8) TMI 12 - HC - Customs

Refund claim - excess payment of CVD - principles of unjust enrichment - whether the claim of the Petitioner that it had not passed on the incidence of CVD in respect of the above B/Es for 27th March, 2015 to 31st March, 2015 to the customer was supported by proper documentation? - Held that - there was no reason whatsoever for Respondent No. 4 not to accept the very same documents in respect of the imports between 27th March, 2015 and 31st March, 2015. The certificate of the CA is categorical that the incidence of CVD, even in respect of these imports, had not been passed on to the customers. Consequently, there was no valid justification for Respondent No. 4 to have denied the refund claim. Given the history of the case where the Petitioner has to approach this Court again for relief, the stand taken by the Respondents regarding the maintainability of the present petition deserves to be rejected. Respondent No. 4 appears to be unwilling to accept the legal position explained by this Court repeatedly in several decisions and is persisting with rejection of the refund claims of the Petitioner on specious grounds. The Respondent is directed to allow the Petitioner s refund in respect of the claims made for the imports for the period 27th March, 2015 to 31st March, 2015 - petition allowed - decided in favor of petitioner.

Issues Involved:
1. Rejection of refund claim for countervailing duty (CVD) on imports.
2. Applicability of unjust enrichment principle.
3. Relevance of Chartered Accountant (CA) certificates in refund claims.
4. Distinction between different periods of import for refund claims.
5. Maintainability of the writ petition.

Issue-wise Detailed Analysis:

1. Rejection of refund claim for countervailing duty (CVD) on imports:

The Petitioner, Yu Televentures Private Limited, is aggrieved by the rejection of its claim for refund of the countervailing duty (CVD) in respect of the imports made between 27th March, 2015 and 31st March, 2015. The Petitioner paid CVD at a higher rate despite being eligible for a lower rate under specific notifications. The Petitioner filed refund claims based on the Supreme Court's decision in SRF Ltd. v. Commissioner of Customs, Chennai, which interpreted conditions for concessional CVD rates.

2. Applicability of unjust enrichment principle:

The Deputy Commissioner (Refund) issued a memorandum stating that the assessment order had become final and the duty had been correctly paid. The Petitioner argued that the assessment under the Bills of Entry (B/Es) did not need to be disputed or re-assessed for claiming the CVD refund. The Court had previously allowed similar refund claims in cases like Micromax Informatics Ltd. v. Union of India, where it was held that the Department could not refuse the refund only because an appeal had not been filed against the assessment order.

3. Relevance of Chartered Accountant (CA) certificates in refund claims:

The Principal Commissioner of Customs noted that the CA certificate submitted by the Petitioner was not conclusive for rebutting the statutory presumption of passing on the duty incidence. However, the Court had previously accepted CA certificates in similar cases, directing the Department to process the refund claims based on such certificates. The Petitioner provided detailed documentation, including CA certificates, sales invoices, and financial statements, to support its claim that the duty burden had not been passed on to customers.

4. Distinction between different periods of import for refund claims:

The impugned order distinguished between refund claims for B/Es for the months of April, 2015 to July, 2015 and those between 27th March, 2015 and 31st March, 2015. The Respondent accepted the refund claims for the period from April, 2015 to July, 2015 but rejected those for the earlier period on the grounds of unjust enrichment. The Petitioner argued that the same documentation was submitted for both periods, and there was no reason to treat them differently. The Court found that the Petitioner had not passed on the incidence of CVD to customers for either period, and thus, there was no valid justification for denying the refund claim for the earlier period.

5. Maintainability of the writ petition:

The Department raised a preliminary objection regarding the maintainability of the petition, arguing that it involved pure questions of fact. However, the Court rejected this objection, noting that the Petitioner had to repeatedly approach the Court for relief due to the Department's unwillingness to accept the legal position explained in several decisions. The Court directed the Respondent to allow the Petitioner’s refund claim for the imports made between 27th March, 2015 and 31st March, 2015, and pay the refund amount with interest within three weeks.

Conclusion:

The writ petition is allowed, directing the Respondent to process and pay the refund claims for the period from 27th March, 2015 to 31st March, 2015, along with interest, within three weeks. The Court emphasized the importance of consistency in accepting CA certificates and other documentation for refund claims and rejected the Department's objections regarding unjust enrichment and maintainability of the petition.

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