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TMI Blog2024 (10) TMI 1138X X X X Extracts X X X X X X X X Extracts X X X X ..... id chartered accountant certificate dated 29.12.2015, held that the incidence of duty had not passed on to the buyers. This order passed by the Deputy Commissioner has also attained finality. It is not possible to accept the contention raised by the learned authorized representatives appearing for the department that the certificate of the chartered accountant produced by the appellant to substantiate the incidence of duty had not passed on to the buyers should not be accepted because the appellant did not produce any other corroborative evidence as required under sections 28C and 28D of the Customs Act. The orders dated 05.09.2019 and 26.09.2019 passed by the Commissioner (Appeals) confirming the order passed by the Deputy Commissioner for deposit of the sanctioned amount in the Consumer Welfare Fund under section 27(2) of the Customs Act, therefore, deserve to be set aside and are set aside - The appellant is held entitled to the payment of amount of Rs. 3,43,88,087/- and Rs. 2,33,05,108/- with consequential relief(s) - Appeal allowed. - MR. DILIP GUPTA, PRESIDENT AND MR. P. V. SUBBA RAO, MEMBER (TECHNICAL) Shri Kamal Sawhney, Shri Deepak Thackur, Ms. Aakansha Wadhwani and Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper and the order passed by the Deputy Commissioner sanctioning refund should be set aside. 4. Learned counsel for the appellant had not only opposed the delay condonation applications filed with the Cross-Objections, but had also submitted that the Cross-Objections should be rejected as they had not been filed in the manner prescribed under the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 [the 1982 Rules]. 5. On these two issues, namely as to whether the delay in filing the Cross-Objections should be condoned or not, and whether the Cross-Objections had been filed in accordance with the procedure prescribed, submissions had been advanced by Shri Nagendra Yadav learned authorised representative for the department and Shri Kamal Sawhney learned counsel for the appellant and the order was reserved only on these two issues on 08.11.2023. The delay condonation applications filed by the department were rejected by a detailed order dated 08.11.2023, and consequently the Cross-Objections stood rejected. 6. The appeal filed by the department before the Delhi High Court against the said order dated 08.11.2023 of the Tribunal was dismissed by the Delhi High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.) ]. The appellant therein had claimed nil rate of additional duty by relying upon a notification dated 01.03.2002. The Deputy Commissioner held that SRF would not be entitled to exemption from payment of additional duty since it did not fulfil condition no. 20 of the said notification, which is to the effect that the importer should not have availed credit under rule 3 or rule 11 of the CENVAT Rules in respect of the capital goods used in the manufacture of these goods. The admitted position was that such CENVAT credit was not availed by SRF. The Tribunal held that when the credit under CENVAT Rules was not admissible, the question of fulfilling the aforesaid condition did not arise and, therefore, as condition no. 20 was not satisfied SRF could not claim nil rate of additional duty. This reasoning of the Tribunal was found to be not correct by the Supreme Court for the reason that for the purpose of attracting additional duty of customs under section 3 of the Tariff Act on the import of a manufactured or produced article, the actual manufacture or production of a like article in India was not necessary and that for quantification of additional duty in such a case, it has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed thereon by the authority concerned even where an order of assessment may not have reviewed or modified in appeal. Hence, again, following judicial discipline, the refund claim of the claimants, needs to been entertained on the basis of their self-assessed Bills of Entry, though there is no modifying order for those Bills of Entry (emphasis supplied) 12. After having held so, the Deputy Commissioner framed two issues to be decided, namely whether the said refund claims were hit by limitation and whether the appellant had proved that the incidence of additional duty of customs had not been passed on to the buyers. As regards limitation, it was found by the Deputy Commissioner that the claim of Rs. 26,15,842/- was barred by time, but the rest of the claim was within time. As regards the issue as to whether the incidence of duty had been passed on to the buyers or not, the Deputy Commissioner held that the certificates of the Chartered Accountant could not solely be relied upon and as the appellant had failed to conclusively prove that the burden of incidence of duty had not been passed on to the buyers, the amount sanctioned on the refund applications should be credited to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not passed on to the buyers was not accepted by the Commissioner (Appeals) for the reason that it was not supported by documents. This finding is perverse as the certificate dated 29.12.2015 not only stated facts but was also accompanied by Annexure A which contained invoice details, Bills of Entry details, challan details, valuation details, actual duty paid and the duty payable; (ii) The Hyderabad Bench of the Tribunal in the matter of the appellant accepted identical certificate dated 29.12.2015 issued by the same chartered accountant and this order of the Tribunal has attained finality as the department did not file any appeal. Identical certificate of the same chartered accountant also came up for consideration before the Ahmedabad Bench of the Tribunal and on remand by the Tribunal, the Deputy Commissioner passed two orders dated 03.11.2022 accepting the certificate issued by the chartered accountant. These two orders passed by the Deputy Commissioner have also attained finality as no appeals have been filed by the department. In this view of the matter, the chartered accountant certificate dated 29.12.2015 in the present matter should be accepted. In support of this conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised by the learned authorized representative appearing for the department that the refund applications were not maintainable in view of the decision of the Supreme Court in ITC, learned counsel for the appellant submitted that the decision of the Supreme Court in ITC would not be applicable in the present matter as not only had the Cross-Objections that had been filed by the department to raise this issue in the appeals had been rejected, but also because of the fact that this issue cannot be raised by the department for the first time before this Tribunal, more particularly when the finding of the Deputy Commissioner that the appellant was entitled to refund has attained finality. To support this contention, learned counsel for the appellant placed reliance upon the following decisions: (i) Commissioner of Customs, Mumbai vs. Toyo Engineering India Ltd [ 2006 (201) E.L.T. 513 (S.C.)]; (ii) Commissioner of Customs Central Excise Service Tax vs. Indian Farmers Fertilizers Cooperative Ltd.[2014 SSC Online All 17614] ; (iii) Neelima Srivastava vs. The State of Uttar Pradesh Ors. [Civil Appeal No. 4840 of 2021 decided on 17.08.2021] (iv) Global Constructions vs. Commissioner of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 17.03.2012 instead of at the rate of 6%. An objection was raised by the department in the deficiency memo issued to the appellant on the refund applications that since the Bills of Entry had not been re-assessed, it would not be possible to process the refund applications. This aspect was first examined by the Deputy Commissioner in the order and in view of the decision of the Delhi High Court in Micromax Informatics, which considered the decision of the Supreme Court in Priya Blue Industries, the Deputy Commissioner held that the refund applications would be maintainable even in the absence of any challenge to the assessment orders by the appellant. The finding recorded by the Deputy Commissioner is as follows: 31. ***** Hence, again, following judicial discipline, the refund claim of the claimants, needs to be entertained on the basis of their self-assessed Bills of Entry, though there is no modifying order for those Bills of Entry. 25. Thereafter, the Deputy Commissioner found as the fact that the appellant was required to pay additional duty of customs only at the reduced rate of 1%. 26. After having recorded the aforesaid two findings, the Deputy Commissioner proceeded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, the Chartered Accountant s certificate is a subjective document without evidential value and therefore did not compensate the evidential requirement mandated under Section 27(1A), Section 28D. Therefore, the presumption under Section 28D is held against the importer who it is deemed to have passed on full incidence of such duty to the buyer of such goods. The claimant thus appeared to have failed to prove that the claim was not hit by the unjust enrichment clause. Hence, in the event of the refund claim being sanctioned, such amount being sanctioned may be credited to the Consumer Welfare fund in such event, as provided in Section 27(2) of Customs Act, 1962. ***** 51. In the present case as well the applicant has not produced any other document except the said certificate issued by the Chartered Accountant. I n view of the above, I am not inclined to solely rely upon the said certificated issued by the Chartered Accountant and I come to a reasoned conclusion that in the present case the applicant has failed to conclusively prove that the burden of incidence of duty has not been passed on to the buyers of the goods imported under the subject Bills of Entry. And accordingly, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n dispute in the present appeals that the amount claimed under the two refund applications has to be sanctioned. What alone has to be examined in the two appeals is whether the incidence of duty had passed on to the buyers or not. 34. It is in the light of the aforesaid facts that the submissions advanced by the learned authorized representative appearing for the department that the amount could not have been sanctioned by the Deputy Commissioner as the refund applications were not maintainable because of the judgment of the Supreme Court in ITC has to be examined. 35. The issue that has been raised by the department is no doubt a legal issue but what has to be seen is whether this legal issue can be raised by the department in these two appeals filed by the appellant to challenge the issue of unjust enrichment only. The issue before the Tribunal today is not whether the refund applications would be maintainable even in the absence of any challenge to the assessment order by the appellant because that issue has attained finality. Such being the position, the department cannot be permitted to raise this issue in these two appeals. In fact, even if the Cross-Objections were found to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the revenue would assert, in allowing the refund claim without considering the issue of limitation under Section 11B of the Central Excise Act, 1944. 6. In dealing with this submission, it would be necessary to note at the outset that the Assistant Commissioner, Bareilly while sanctioning the refund claim in his order dated 23 December 2011 specifically came to the conclusion that the claim had been filed within a period of one year as prescribed by Section 11B of the Central Excise Act, 1944. The revenue challenged the order of the adjudicating authority before the Commissioner (Appeals). The grounds of appeal have been reproduced in the order of the Commissioner (Appeals). Those grounds would indicate that the revenue did not challenge the finding of the adjudicating authority to the effect that the application for refund had been preferred within the period of one year prescribed by Section 11B . As a matter of fact, the grounds would indicate that the principle, if not the only challenge on the part of the revenue was that the assessee, which was a recipient of the service and not the service provider, was not entitled to file a refund claim under Section 11B. The case of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttedly the State did not challenge the order before any higher forum. The aforesaid judgment, therefore, crystallized the right of the appellant for regularization. It was, however, denied and so another Writ Petition No. 8597 of 2010 was filed. By an order dated 15.05.2014, this Writ Petition was allowed with a finding that since the High Court in the earlier round of litigation had held that she was entitled to hold the post and the said judgment had attained finality, the refusal to apply the Regularization Rules was unlawful. The aforesaid judgment of a learned judge of the High Court was challenged by the State in a Special Appeal before a Division Bench of the High Court. The State relied upon a subsequent judgment of the Supreme Court in Secretary, State of Karnataka ors. vs. Umadevi ors. [(2006) 4 SCC 1] to contend that when the appointment of the appellant was dehors the Rules and, therefore, illegal she was not entitled for regularization. The Special Appeal was allowed holding that since the initial appointment of the appellant was dehors the rules, it was illegal and the appellant cannot be regularized in view of the decision of the Supreme Court in Umadevi. This order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2021 with Civil Appeal Nos. 4444 4445 of 2021 decided on 26.07.2021 (Vice Chancellor Anand Agriculture University Vs. Kanubhai Nanubhai Vaghela and Anr.) has rejected the argument advanced by the appellant in the said case that the judgment of this Court dated 18.01.2001 in Gujarat Agricultural University Vs. Rathod Labhu Bechar Ors. [(2001) 3 SCC 574] does not survive after the judgment of this Court in Umadevi(3). It was held in paragraph 11 as under:- 11. We have heard Mr. P.S. Patwalia, learned senior counsel for the university and Mr. Nachiketa Joshi, learned counsel for the respondents. The main contention of the university is that after the judgment of this Court in Secretary, State of Karnataka and Ors. vs. Umadevi and Ors. 2, the respondents are not entitled for regularization as there are no sanctioned posts available. Another submission made on behalf of the appellant is that the judgment of this Court dated 18.01.2001 in Gujarat Agricultural University (supra) does not survive after the judgment of this Court in Umadevi. ***** We are not impressed with the submissions made on behalf of the university that the judgment of this Court in Umadevi s case overruled the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und that the proposal and the show cause notice to recover a sum of Rs. 2,44,48,095/- under Section 73A of the Act and the interest thereon under Section 73B of the Act, was not confirmed by the Learned Commissioner in his order-inoriginal. Accordingly, the Learned Tribunal held that, in the absence of a cross-appeal by the Department, it would not be possible to confirm any demand under Section 73A of the Act. (emphasis supplied) 42. In Servo Packaging, the Madras High Court held: 19. Though show cause notices have been issued by the original authority, for the shortage of raw materials noticed, which includes, allegation of clandestine removal of raw materials, the finding of the original authority against the revenue, on the latter, is clear. When the department has not chosen to challenge the finding of the original authority, on the allegation of clandestine removal of raw materials nor filed any cross-objection to the appeal filed by the assessee, we are of the view that the finding rendered, by the original authority, in favour of the assessee, has reached finality. (emphasis supplied) 43. In Udit Seth, the Tribunal held as follows: 5.5 In respect of para-III of the ground o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inable for the reason that assessment proceedings had not been challenged by the appellant by filing appeals. This issue, as noticed above, had attained finality. Once the department allowed a particular issue to attain finality, it will not be permissible to permit the department in appellate proceedings initiated by an assessee before the Tribunal to raise this issue, even if it be a legal issue. The issue that is sought to be raised is not even the subject matter of these appeals as the sole issue that arises for consideration in these appeals is whether the incidence of duty was passed on to the buyers. In all the decisions that have been referred to by the learned authorized representatives for the department only general principles regarding raising of a legal issue have been examined. In none of these decisions it has been held that even if an issue that is sought to be urged has attained finality, it can still be raised considering it to be a legal issue. The decisions relied upon by the learned authorized representatives appearing for the department, therefore, do not come to the aid of the department. 46. It has, therefore, to be held that as the order dated 23.01.2017 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany should not have availed any CENVAT credit on inputs and input services and basis our review of the books of accounts and other available records, stated conditions stand fulfilled for the subject refund claim. D. That for the purpose of examining the clause of unjust enrichment to the importer in respect of subject refund claim, we have verified the importer s Books of Accounts and other relevant documents and records of the goods. Based on such verification, we have satisfied ourselves : a) that the price at which the imported goods were sold to buyers has not increased in 2014-15 due to increase in the rate of CVD in 2014-15 or before 2014-15. b) that customs duty claimed as refund has not been recovered from the customers or any other person separately in any manner. In our view as a business practice any variation/increase in tax burden has been absorbed by the Company and same is evident from the cost sheets examined. Further, the claimant has not claimed the refund pertaining to the items where the duty burden was passed on to the customer as an increase in price. Accordingly, we certify that the claimant has not passed on the incidence of the differential customs duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chartered Accountant, we find that Revenue has not adduced contrary evidence to show that appellant herein had passed on the incidence of duty. In the absence of any contrary evidence, we have to hold that the Chartered Accountant s Certificate as produced by appellant needs to be accepted. (emphasis supplied) 50. The aforesaid order of the Hyderabad Bench of the Tribunal has attained finality as no appeal has been filed by the department. 51. A similar certificate dated 29.12.2015 was filed by the appellant for imports made at Ahemdabad. This certificate was not accepted by the adjudicating authority. The Ahemdabad Bench of the Tribunal in Customs Appeal No s. 11639-11640 of 2017 [2019 (368) E.L.T. 975 (Tri. - Ahmd.)] remanded the matter to the adjudicating authority to pass a fresh order with respect to the certificate dated 29.12.2015 issued by the chartered accountant. 52. On remand, the Deputy Commissioner, Ahmedabad accepted the chartered accountant certificate dated 29.12.2015 and observed as follows: 18. I further find that the Chartered Accountant (M/s. KRA Co. New Delhi) of the claimant has already audited the records of the said claimant and issued certificate as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the claimant entitled to refund has also attained finality as no appeal has been filed by the department. 54. It is seen that the same chartered accountant issued three identical certificates, each dated 29.12.2015, to the appellant in respect of the import of the same goods at about the same time from Delhi, Ahemdabad and Hyderabad. The Hyderabad Bench of the Tribunal accepted this certificate and held that the burden of duty had not passed on to the buyers. This order of the Hyderabad Bench has attained finality. An identical chartered accountant certificate dated 29.12.2015 also came up for consideration before the Ahemdabad Bench of the Tribunal. The Tribunal remanded the matter to the Deputy Commissioner to examine the issue afresh. The Deputy Commissioner, on remand, after carefully examining the said chartered accountant certificate dated 29.12.2015, held that the incidence of duty had not passed on to the buyers. This order passed by the Deputy Commissioner has also attained finality. 55. Once the department has allowed the order of the Hyderabad Bench of the Tribunal in respect of the imports at Hyderbad as also the order passed by the Deputy Commissioner at Ahemdabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of another Bench of the Tribunal in Commissioner of Central Excise, Calcutta-I v. Bitumen Products (India) [1999 (107) E.L.T. 58 (T)], held that Bituminised Hessian based felt is covered under Chapter Heading 59.09 as contended by the assessee and not under 68.07 as contended by the revenue. 5. Admittedly, no appeal was filed by the revenue against the earlier decision of the Tribunal in Bitumen Products (India) (supra) and the same has become final. 6. This Court in a catena of cases has consistently taken the view that if an earlier order is not appealed against by the Revenue and the same has attained finality, then it is not open to the Revenue to accept judgment/order on the same question in the case of one assessee and question its correctness in the case of some other assessees . The Revenue cannot pick and choose. [See : Union of India Others v. Kaumudini Narayan Dalal Another [2001 (10) SCC 231]; Collector of Central Excise, Pune v. Tata Engineering Locomotives Co. Ltd. [2003 (158) E.L.T. 130 (S.C.)]; Birla Corporation Ltd. v. Commissioner of Central Excise [2005 (186) E.L.T. 266 (S.C.)]; Jayaswals Neco Ltd. v. Commissioner of Central Excise, Nagpur [2006 (195) E.L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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