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TMI Blog2024 (10) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... d order has gone on to hold that the assessee had been unjustly enriched. Moreover, in directing recovery for credit in the Fund, the impugned order has not indicated the means to be adopted while section 28 of Customs Act, 1962 is the explicitly available facility for recovery of erroneously granted refund, it is moot if an appellate authority can step into the shoes of the proper officer contemplated therein or supplant the application of mind inherent in such jurisdiction. It is also moot if action under section 142 of Customs Act, 1962 initiated by anyone other than proper officer or authority designated therein is valid in law. The present dispute may, in effect, be restated to posit that the case of customs authorities is that imported goods have been used in the year of procurement for manufacture and conversion into sale value in the selfsame year. The impugned order has not disputed the provisioning as receivables in 2019-20 and has accepted the certificate of chartered accountant to that effect. The appeal of Commissioner of Customs did not dispute it either. The backbone for discard of the claim is the purported inadequacy of certificate for not attesting to concurrence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of onus of establishing that the amount so refunded had not unjustly enriched them at the cost of their customers presumed by law to have borne the incidence of the excess amount so levied. 2. The bills of entry no. 9424384/24.04.2017 and 9762026/ 19.05.2017 submitted by appellant for clearance 164773 and 164284 metric tons of iron ore were assessed provisionally under section 18 of Customs Act, 1962 to ₹ 22,16,92,257 and ₹ 20,40,54,191 respectively as duties of customs owing to non-sufficiency of documents and pendency of test report necessary for a final call on valuation given that supplier was related to them. Upon finalization by orders of 14th October 2019 and 9th October 2019 respectively, the excess payment was determined following which claim for refund of ₹ 1,88,39,557, representing differential basic customs duty and energy cess , was filed with the competent authority designated in section 27 of Customs Act, 1962 on 11th March 2020 who allowed the same but for ₹ 9,76,159 retained towards interest liability pending on five other consignments. Aggrieved that the documentary evidence with the application did not suffice to overcome the presumption, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse of the dispute and cited various decisions of the Tribunal as well as judgement of the Hon ble High Court of Bombay in Commissioner of Central Excise, Pune-I v. Sandvik Asia Ltd [2015 (323) ELT 431 (Bom)]. He submitted that, in the absence of challenge to contents of certificate of chartered accountant in the appeal, the first appellate authority had travelled beyond the scope of appeal to pick at the mode adopted by the lower authority and even suggest that documents that were not before him should have been scrutinized by that authority. 5. Learned Authorised Representative refuted the submission of Learned Counsel with the contention that the review was specific on the faultlines in the sanction of refund. He objected to certification of chartered accountant on the ground that it was inadequate and their suggestion of having made provisioning long ago with the counter that appellant could not have, then, been privy to the dispute for such separate treatment from the beginning. He drew attention to the statutory provision relating to prescriptions and documentation. 6. In the decisions relied upon by first appellate authority, the consistent thread of determination has been t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the year of provisional assessment and has placed on record absence of any other evidence having been submitted for discharge of onus. Consequently, without affording opportunity to the assessee to make good the then revealed gaps, the impugned order has gone on to hold that the assessee had been unjustly enriched. Furthermore, the decisions cited by the first appellate authority do not lead to such conclusion in that those were based on the clear findings of absence of ever having treated the amounts involved as receivables which does not fit the facts of the present dispute. Moreover, in directing recovery for credit in the Fund, the impugned order has not indicated the means to be adopted while section 28 of Customs Act, 1962 is the explicitly available facility for recovery of erroneously granted refund, it is moot if an appellate authority can step into the shoes of the proper officer contemplated therein or supplant the application of mind inherent in such jurisdiction. It is also moot if action under section 142 of Customs Act, 1962 initiated by anyone other than proper officer or authority designated therein is valid in law. However, as the last has not been agitated bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have it that, except when retained as asset in the accounts, expenditures inhere in the price of goods sold. Not unnaturally, such inhering is also not correlatable except on the premise that totality of goods sold is a growing amorphous mass represented by accumulated price realisation. It is equally impossible to assign timelines pertaining to deployment of imported goods in the manufactured products. The present dispute may, in effect, be restated to posit that the case of customs authorities is that imported goods have been used in the year of procurement for manufacture and conversion into sale value in the selfsame year. The impugned order has not disputed the provisioning as receivables in 2019-20 and has accepted the certificate of chartered accountant to that effect. The appeal of Commissioner of Customs did not dispute it either. 9. The statutory provisions do not require that provisioning as receivables is mandatory for overcoming the bar of unjust enrichment. On the contrary, provisioning and certification by chartered accountant have obtained adjudicatory acceptance through judicial sanction. None of the decisions relied upon in the impugned order have held that provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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