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TMI Blog2025 (2) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applied by them for refund. 1.1 The department formed an opinion that order of self-assessment itself is an order of assessment as per section 2(2) of the Customs Act, 1962, and it hold good unless an order of reassessment under Section 17(4) of the Customs Act, 1962 is issued against it. Further, Section 27 of the Customs Act, 1962, governing the issue of refund, does not permit setting aside of the order of self-assessment and reassess the duty for making refund. The CBEC vide Circular No. 24/2004-Cus. dated 18.03.2004 has clarified that the refund cannot be claimed under Section 27 of the Customs Act, 1962 directly without challenging assessment as done in the Bill of Entry. Hence refund in the instant case is not maintainable, when the assessee did not challenge the assessment order (self assessment) which has already attained finality. In view of the above, the refund application dated 25.11.2019 was alleged to neither be maintainable nor admissible. Hence refund application dated 25.11.2019 praying for refund of Customs duty amounting to Rs.8,36,11,598/- was proposed to be rejected. The said proposal was accepted by original adjudicating authority vide Order No. 32/2019-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act. The request for reassessment was rejected without any speaking order. One of the ground of appeal before Commissioner (Appeals) was a request for directions for speaking order of reassessment of the impugned Bills of Entry but the order under challenge is silent to the said ground of appeal. 3.2 The issue of unjust enrichment as raised by Commissioner (Appeals) is apparently beyond the scope of show cause notice and also of the Order-in-Original. Suo moto reliance is not permissible. Otherwise also, the appellant had provided the certificate issued by the Chartered Accountant certifying that the excess paid CVD was not recovered from the buyers of the imported goods. Hence, the order under challenge is passed in ignorance of the cogent evidence on record. A letter dated 24.08.2023 was again filed by the appellant requesting for amendment of the Bills of Entry/reassessment thereof but the same has not been processed by Commissioner of Customs, Air Cargo Complex, Jaipur. The request of reassessment is otherwise acceptable in terms of Section 149 and 154 of the Customs Act. The similar request has already been allowed by Commissioner of Customs (Import), New Delhi v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rable in Books of Account, when the SRF decision was not in existence, also does not extent any benefit to the appellant. Finally, it is submitted that all the cases relied upon by the appellant have clearly and correctly been distinguished by Commissioner (Appeals). Impressing upon no infirmity in the said order, the appeal is prayed to be dismissed. 5. Having heard both the parties and perusing the records, we observe and hold as follows: 5.1 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. (supra). The refund claim has been filed in terms of Section 27 of the Customs Act, 1962. The section reads as follows: Section 27. Claim for refund of duty. - (1) Any person claiming refund of any duty or interest,- (a) paid by him; or (b) borne by him, may make an application in such form and manner as may be prescribed for such refund to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad 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 Hon'ble Apex Court in the case of ITC Ltd. (supra) has held as follows: 43. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression 'Any person' is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of reassessment which is appealable but the provisions of Section 128 make appealable any decision or order under the Act including that of self-assessment. The order of self-assessment is an order of assessment as per section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/speaking order in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the last ground, the additional grounds taken by Commissioner (Appeals) while rejecting the impugned refund application i.e. bar of unjust enrichment, we observe that Commissioner (Appeals) has held as follows: The appellate authority finds that the instant case does not qualify the bar of unjust enrichment. As the impugned goods were sold after importation prior to judgment of SRF judgment. There is hardly any mechanism to make entry in the books of account at later stage when the decision was not in existence. The concept of unjust enrichment, defining it as the retention of a benefit that is considered contrary to justice or equity. Further, the assessment of Mobile phone was based on MRP and the goods are sold in the market accordingly on the basis of declared MRP which include duty components. Once goods assessed on declared MRP having duty component, the incidence of duty is passed on to the buyer of sale of the same. 5.5 We also observe that in terms of Section 28D of the Customs Act, there arises a presumption about incidence of duty to have been passed on to the buyer. The provision reads as follows: 28D. Presumption that incidence of duty has been passed on to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. The said enactments including Section 11B of Central Excises and Salt Act and Section 27 of the Customs Act do constitute "law'' within the meaning of Article 265 of the Constitution of India and hence, any tax collected, retained or not refunded in accordance with the said provisions must be held to be collected, retained or not refunded, as the case may be, under the authority of law. Both the enactments are self-contained enactments providing for levy, assessment, recovery and refund of duties imposed thereunder. Section 11B of the Central Excises and Salt Act and Section 27 of the Customs Act, both before and after the 1991 (Amendment) Act are constitutionally valid and have to be followed and give effect to. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Proposition (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncumbent 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. With due regard to the provisions, both the said statutes has to be given and the grant of relevance of refund is to be refused where burden of duty seems passed on to the third party which as and the burden to prove the same raised upon the claimant. In the light of the said decisions, the law of land and in absence of any evidence, other than the afore observed incomplete C.A. Certificate, to discharge the burden, we do not find any reason to differ with the findings arrived at by Commissioner (Appeals). We hereby, sustain the order to this extent as well. 6. In the light of entire above discussion, we concur with the finding with respect to all the grounds based whereupon the departmental adjudicating authorities have rejected the impugned refund claim of CVD paid, we hereby uphold the order under challenge. Consequent thereto, the appeal stands dismissed. [Order pronounced in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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