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TMI Blog2025 (3) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... sions also hold that when the differential customs duty is shown as "receivables" in the Balance Sheet/Financial Statement, it would follow that duty has not been passed on to the customers. The decisions also hold that in such a case the legal presumption under section 28 of the Customs Act stands rebutted. A Certificate issued by a Chartered Accountant, therefore, cannot be lightly brushed aside without there being any cogent evidence to the contrary. In the present case the Commissioner (Appeals) only doubted that the amount of Rs. 1,67,88,778/- was not included in the amount of Rs. 17,38,94,156/- shown in the Books of Account of the appellant. This doubt could have been clarified from the appellant but that was not done. The decision of the Tribunal in Kohinoor India [2014 (11) TMI 192 - CESTAT NEW DELHI], on which reliance has been placed by the learned authorized representative appearing for the department, holds that mere production of a Certificate of the Chartered Accountant does not ipso facto grant refund to the respondent until material is produced by the assessee to show that burden of duty has not been passed on to the buyers. This decision would, therefore, not hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and directed the adjudicating authority to examine the claim of the appellant denovo within a period of four months after providing an opportunity of hearing to the appellant. Thereafter, an order was passed by the Deputy Commissioner in March 2018 finalizing/re-assessing the 27 Bills of Entry, including the 4 Bills of Entry, by charging CVD @ 1% in terms of the Notification. 4. Consequently, the appellant filed an application dated 08.03.2018 before the Deputy Commissioner of Customs (Refund) for refund of the excess amount of CVD paid by the appellant in terms of the re-assessment of the Bills of Entry. 5. The Superintendent (Refund) addressed a letter dated 16.04.2018 to the appellant seeking the following documents: (i) Refund Application (Part-A). (ii) Duplicate (Importer Copy) of B/Es in original. (iii) C.A. Certificate for unjust enrichment along with correlation sheet. (iv) Self Attested copies of TR-6 Challans. 6. The appellant submitted the aforesaid documents and thereafter the Assistant Commissioner (Refund) passed an order dated 15.06.2018 sanctioning refund of Rs. 1,67,79,311/- to the appellant in terms of the provisions of section 27(2) of the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porter to their customers directly or indirectly, I have already taken note of the facts that the importer has submitted a Chartered Accountant's Certificate dated 09.04.2018 issued by D K Munjal & Associates (Firm Reg. No. 023194N) to the effect certifying that the burden of CVD under this refund claim has not been passed on to the buyers and the amount being claimed has been shown in their Books of Accounts/Balance Sheet as amount recoverable from the Customs. Accordingly, I hold that the provisions of unjust enrichment clause under Section 28D of the Customs Act, 1962 are not applicable to the facts of this case and hence not invokable. In view of the aforesaid decisions, I am of the considered view that the appellant has discharged the statutory obligation cast on him of rebutting the presumption of unjust enrichment in any satisfactory manner acceptable to law. In this view of the matter, I find that the importer has satisfied the condition of unjust enrichment and the burden of EDD has not been passed to the buyers and therefore, accordingly I hold that claimant is entitled for refund. The refund claim has been pre-audited by the Assistant Commissioner of Customs (Audit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisionally assessed bills of entry. 5.4.2 Respondent Importer submitted that the certificate is in respect of total amount including provisionally assessed BOEs and reassessed BOEs which were initially self-assessed. In this connection, the scanned copy of certificate dated 09.04.2018 is as below: ***** It is evident that the certificate is referring to provisionally assessed bills of entry only. Neither the details of bills of entry are mentioned nor the amount recoverable has been mentioned. There is no means to conclude that the said certificate includes reference to finally assessed bills of entry initially self-assessed. It is settled position that mere entry in ledger or Balance sheet or the Charted Accountant Certificate is not sufficient to rebut the statuary presumption that burden of duty has not been passed. Further, since the CA certificate was devoid of details of duty claimed as refund and not supported by the invoices, the same is not sufficient for passing the bar of unjust enrichment. In this regard, I rely upon the judgment in the case of M/s. Shoppers Stop Ltd. Vs Commissioner of Customs (Export), Chennai [2018(8) GSTL 47 (Mad.)]." (emphasis supplied) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tile Mills Ltd. [2008 (230) E.L.T. 411 (Mad.)]; (c) Commissioner of C. Ex. & Cus. vs. Manisha Pharmoplast Pvt. Ltd. [2008 (222) E.L.T. 511 (Guj.)]; (d) IOC Ltd. vs. Commissioner of Central Excise, Meerut [2016 (335) E.L.T. 313 (Tri. - All.)]; (e) Eveready Industries India vs. Commissioner of C. Ex., Lucknow [2015 (323) E.L.T. 612 (Tri. - Del.)]; (f) Commissioner of C. Ex., Lucknow vs. Eveready Industries India Ltd. [2017 (357) E.L.T. 11 (All.)]; (iv) The impugned order ignores the settled position that once the Balance Sheet is on record, and a Certificate from the Chartered Accountant certifying that the excess duty had not been recovered from the customers is also on record, the burden shifts to the revenue to prove that duty was recovered from the customers; and (v) Unjust enrichment will not apply to refund of CVD which was not payable in the first instance. 15. Shri Girijesh Kumar, learned authorized representative appearing for the department, however, supported the impugned order and made the following submissions: (i) The Commissioner (Appeals) correctly recorded the finding that since the Balance Sheet merely mentions customs duty receivable and there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Refund) found as a fact that the appellant had discharged the burden contemplated under section 28D of the Customs Act. 20. The Commissioner (Appeals), however, did not agree with the finding recorded by the Assistant Commissioner (Refund) that the refund amount of Rs. 1,67,79,311/- was included in the amount of Rs. 17,38,94,156/- shown in the Balance Sheet for the Financial Year 2015-16. The Commissioner (Appeals) also doubted the Certificate issued by the Chartered Accountant for the reason that the said Chartered Accountant had not audited the Balance Sheet for the Financial Year 2015-16 and the Certificate "is not in respect of impugned refund of Rs. 1,67,79,311/- which is related to finally assessed Bills of Entry" as it only relates to the provisionally assessed Bills of Entry. The Commissioner (Appeals), therefore, observed that there was no means to conclude that the said Certificate includes reference to finally assessed Bills of Entry. The Commissioner (Appeals) also found that the Certificate issued by the Chartered Accountant did not contain details of duty claimed as refund and, therefore, could not be relied upon for recording a finding that duty had not been pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vable" which is reflected under the major head of "Short Term Loans & Advances" in the Balance Sheet. Also the Company has not passed the burden of excess duty to any other entity or Individual. This certificate is issued on the request of the Company for the purpose of onwards submission to the Custom Authorities for refund claim of the aforementioned amount paid by them only and is privileged not to be quoted anywhere else. This is issued on the basis of the information provided by the Company believed to be reliable." (emphasis supplied) 24. It needs to be noted that the appellant filed a Miscellaneous Application in this appeal on 01.02.2024 to bring on record a fresh Certificate dated 31.01.2024 issued by the same Chartered Accountant Firm. This application was allowed by order dated 08.04.2024 and the said additional evidence was taken on record. The Certificate dated 31.01.2024 records that earlier a Certificate dated 09.04.2018 was issued to the appellant and the present Certificate was being issued in furtherance of the said Certificate. This Certificate dated 31.01.2024 is reproduced below: "TO WHOMSOEVER IT MAT CONCERN This Certificate is issued to Vivo Mobile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vivo for the financial year ended 31st March, 2016 which totals to Rs. 17,38,94,156/-. (Annexure-1). (d) Vivo has not considered the abovesaid amount of Rs. 1,67,88,778 as part of their expense as evident from the books of accounts and documents maintained. (e) Vivo has not passed on the burden of the abovesaid amount of Rs. 1,67,88,778 to any other entity or individual. For H K M & Associates Chartered Accountant Firm Reg. No. 025794 N UDIN: 24527911BKDBHI4088 Hemant Kumar Munjal Proprietor M.No. 527911 Place: Faridabad Date: 31/01/2024 Annexure-1 S.N. Customs Duty Receivable" under the major head of "Loans and Advances (As per Financials of 2014-15) Amount of Rs. 1. SFR refund 15.12.2014 to 24.03.2015 3,01,49,696 2. Delhi port 4% SAD refund - til DEC 2014 2,00,198 3. Delhi port 4% SAD refund - til March 2015 3,74,460 4. SFR refund 28.05.2015 to 05.06.2015 2,92,96,394 5. Mumbai port 4% SAD refund - April to June 2015 49,34,818 6. Delhi port 4% SAD refund - April to June 2015 8,62,526 7. Haryana office - 4% SAD - June 2015 36,702 8. Mumbai port 4% SAD refund - July to Sept 2015 13,31,438 9. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liance upon the Financial Statement and the Certificate issued by the Chartered Accountant as it did not specifically refer to the amount of Rs. 1,67,79,311/-, the appellant could have been asked to explain the position but that was not done and an adverse inference was drawn. 27. The contention of the appellant is that had an opportunity been granted, the appellant would have filed a better Certificate of the Chartered Accountant and indeed the appellant has filed a better Certificate dated 31.01.2024 of the same Chartered Accountant Firm clarifying that the appellant had considered the amount of Rs. 1,67,79,311/- as part of customs duty receivable in the Financial Year Statement ended 31.03.2016 which comes to Rs. 17,38,94,156/-. The details have also been provided for in Annexure 1, which includes the amount of Rs. 1,67,88,778/- in the customs duty that was receivable. 28. The finding recorded by the Commissioner (Appeals) that the Certificate dated 09.04.2018 refers to provisionally assessed Bills of Entry and not finally assessed Bills of Entry is not borne out from the Certificate dated 09.04.2018. The said Certificate clearly mentions that the provisional Bills of Entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submission by the respondent that during the relevant period, M/s Naveen Associates were their Chartered Accountants must be accepted. Even otherwise, there is no requirement in law that a certificate must be issued only by the statutory auditors. So long as the certificate is issued by a Chartered Accountant and it is consistent with the accounts such as Balance Sheet and Profit and Loss statement, the certificate deserves to be accepted." 9. We thus find no ground to interfere with the order impugned." (emphasis supplied) 32. In Virudhunagar Textile, the Madras High Court observed as follows: "16. ***** Apart from that, the Chartered Accountant has furnished a certificate to the effect that the duty element paid for importation of the capital goods has not been passed on to any person and the balance sheet of the respondent company was also produced before the authorities in which the differential duty has been shown as duty recoverable from the Customs Department. The legal presumption (Section 28-D of the Act) relied on has thus been rebutted with the above materials which can well be regarded as corroborative evidence. Even to the worse, if the Department is not sat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and then fix the sale price or take the cost of the goods and taxes but exclude such taxes and duties which are disputed and then decide the sale price. In the first case, the amount incurred as duty will be added to the cost of the goods which will be evident from the balance sheet. In the latter case, the amount paid as duty will not be added to the cost of the goods but it will be treated as "receivable from the Government" This is the latter case. In such a case, the cost of the duty has, evidently, not been passed on to the buyers. By examining what treatment was given to the disputed amount of duty or tax in the accounts, it can easily be verified whether it was passed on, either directly or indirectly, to the customers. In this case it has not been so passed. Learned special counsel for the Revenue vehemently argued that the Chartered Accountant's certificate cannot be relied upon. However, on a query from the Bench, he could not produce any document whatsoever to either establish the fact that duty has been passed on by the respondent or to show that the Chartered Accountant certificate's was incorrect. We, therefore, find no force in this submission of the learned special ..... X X X X Extracts X X X X X X X X Extracts X X X X
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