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TMI Blog2025 (3) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... not be availed. The Refund Application is filled with the proper officer for refund i.e. Assistant Commissioner (Refund), who can only process the refund claim. The ITC judgement [2019 (9) TMI 802 - SUPREME COURT (LB)] clearly says that "It will virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27". As per Law of Comity, only the proper officer who has done the assessment or verification of Assessment (in case of self-assessed Bills of Entry) can only do the re-assessment. Micromax should have first opted for re assessment of the Bills of Entries, and only then they should have filed refund application. Having missed the prescribed time lines, it is held that Micromax is not eligible for the refund of Rs18.38 Cr & Rs 35.89 Cr as claimed by them. The Hon'ble Supreme Court in Mafatlal Industries Ltd. Versus Union of India [1996 (12) TMI 50 - SUPREME COURT]] has held that 'While the jurisdiction of the High Courts under Article 226 - and of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the view that under Section 149, only amendment of factual details of Bs/E can be done but not the assessment or re-assessment which includes extending the benefit of Notification, which is a quasi-judicial function. As per Section 17(5), re-assessment is possible for extending benefit of Notification but, the time limit for such re-assessment is 60 days from the date of Out of Charge - Section 149 is for amendment of details on the basis of document evidence which was in existence at the time the goods were cleared. In the instant case, it was extending of benefit of S. No. 263A of Notification No. 12/2012 dated 17.03.2012 read with amendments and S. No. 132 of N/N. 01/2011 CE dated 01.03.2011 as amended. The fact that importers are eligible for such benefit of Notification has come to light only after Hon'ble Supreme Court judgment in the matter of SRF Ltd. [2015 (4) TMI 561 - SUPREME COURT] which was delivered on 26.03.2015. This fact was not available at the time of filing/ OOC of Bs/E in June-July 2014. Conclusion - i) There is a necessity of reassessment before processing refund claims. ii) The doctrine of unjust enrichment applies, barring refunds when the duty inciden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms @ 6%/ 10%/ 12.5% during the period 2014-15. Consequent to Hon'ble Supreme Court judgement in the matter of SRF Ltd [2015 (318) ELT, 607 (SC)] (here in after referred as "SRF judgement") they filed a consolidated refund application for claim of Additional Duty of Customs @ 1% or 2%. The Revenue initially rejected the refund claim and thereafter, sanctioned the same with conditions. The entire amount of Rs 18.38 Cr & Rs. 35.89 Cr was consequently sanctioned. The chronology for each of the appeals is as below: Departmental appeal No. C/51109/2019 for Rs 18.38 cr and Party appeal No.C/50824/2024 for Rs 18.38 cr Date Event Details June-July 2014 Bs/E importing mobile phone handsets of CTH 8517 with payment of Additional Duty of Customs @ 6%/ 10%/ 12.5%. S. No. 263A of Notification No.12/2012 dated 17.03.2012 r.w. amendments. 26.03.2015 Hon'ble Supreme Court judgement in the matter of SRF Ltd, 2015 (318) ELT, 607 (SC) 30-6-2015 Consequent to above judgement, appellant filed consolidated refund application on the basis of claim of Additional Duty of Customs @ 1% or 2%. S. No. 263A of Notification No.12/2012 dated 17.03.2012 r.w. amendments and S. NO. 132 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of ITC. Applications stand allowed. Department filed appeal against OIO 101/VP/2019 dt. 24.06.2019 01.03.2024 CC(A)/Cus/D-I/Import/NCH/5130/ 2023-24 dated 01.03.2024 Allowed the Departmental appeal and set aside the impugned OIO 101/VP/2019 dt. 24.06.2019 02.04.2024 Party filed appeal before Hon'ble CESTAT C/50824/2024 5. From the above it is clear that: a) OIO dt.19.01.2016: The Order-in-Original no. 2304/SK/2015 dt 19.01.2016:- Refund for Rs.18.38 crores was rejected by relying upon M/s Priya Blue Industries Ltd. Vs. Commissioner [2004(170)ELT A 308(SC)] as the Bs/E were not reassessed. The term " Order -in Original " henceforth is referred as "OIO" b) OIO dt.29-08-2016: The AC (Refund) passed the OIO no. 1454/PS/2016 dated 29.08.2016 sanctioned the refund of Rs.18.38 Crores but Credited to Consumer Welfare Fund as refund claim was hit by Doctrine of unjust enrichment. c) OIA dt.11-02-2019: Against the OiO dated 29.08.2016, the party filed appeal on 03.11.2016 with Commissioner (Appeal) and the Commissioner (Appeal) passed OIA no. 664/2019 dated 11.02.2019.The term "Order -in- Appeal" henceforth is referred as "OIA" d) DEPARTMENTAL A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner (Appeal) passed OIA no. 666/2019 dated 14.02.2019. The Commissioner has held that the appellants are entitled for refund of Rs.35.89 cores and remanded the case back to adjudicating authority with a direction to pass fresh order on the basis of CA certificate and other documents. 16.05.2019 Department filed appeal no. C/51110/2019-Cus (DB) against OIA no. 666/2019 dated 14.02.2019. 24.06.2019 On the basis of OiA dated 11.02.2019, the refund of Rs.35.89 crores was sanctioned by AC (Refund) vide OIO no. 102/VP/2019 dt. 27.06.2019 Subject to outcome of departmental appeals in (a) Hon'ble Supreme Court SLP No. 31561/2017 filed against Delhi High Court order dated 26.07.2017 in the case of YU Televentures in WP No. 2102/2017 and (b) departmental appeal C/51110/2019 filed in CESTAT against OiA dated 14.02.2019 18.09.2019 The departmental appeal in Supreme Court:-This case is Reversed in ITC Ltd. vs. Commissioner of Central Excise, Kolkata-IV 2019 (368) E.L.T. 216 (S.C.) dated 18.09.2019. 03.07.2023 CESTAT Misc Order 50175-176/2023 dt. 03.07.2023 The cases were being adjourned waiting for the outcome of the Commissioner (Appeals) OIA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r: A. THE IMPUGNED ORDER HAS BEEN PASSED BY THE APPELLATE AUTHORITY ON INCORRECT UNDERSTANDING OF LAW AND ERRONEOUS FINDINGS: Malafide intent: The fact as to the bona fide action of the Appellant has not been disputed before the Hon'ble Supreme Court in the ITC judgment nor any other previous proceedings. It was only pursuant to the ITC judgment in 2019 that the position was clarified and it was held that even an order of self-assessment was an appealable order under section 128 of the Customs Act. Hence there is no question of the Appellant proceeding in a selective or malafide basis. B. THE ISSUE OF ELIGIBILITY TO CLAIM EXEMPTION UNDER THE EXEMPTION NOTIFICATION IS SETTLED IN FAVOUR OF THE APPELLANT: It is submitted that the Exemption Notification was issued to exempt specified goods from payment of excise duty, subject to certain conditions as to non-availment of CENVAT Credit on inputs and capital goods. C. THE APPELLATE AUTHORITY HAS INCORRECTLY RELIED ON THE ITC JUDGMENT WITH RETROSPECTIVE EFFECT: Without prejudice to the aforesaid, it is submitted that the Department has incorrectly applied the decision of the Hon'ble Supreme Court retrospectively to closed assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal no. CC(A)Cus/D-I/ACC-Import/Refund/NCH/666/2018-19 dated 11.02.2019 is legal & proper wherein the ld. Commissioner has held that the appellants are entitled for refund of Rs.35.89 cores and remanded the case back to adjudicating authority with a direction to pass fresh order on the basis of CA certificate and other documents (B) PARTY APPEALS: i. Whether the Order-in-Appeal no CC(A)Cus/D-I/Import/NCH/ 5130/2023-24 dated 01.03.2024 is legal & proper wherein the ld. Commissioner has allowed the Departmental appeal and set aside the impugned Order-in-Original No. 101/VP/2019 dt. 24.06.2019. ii. Similarly whether the Order-in-Appeal no CC(A)Cus/D-I/Import/ NCH/5129/2023-24 dated 01.03.2024 is legal & proper wherein the ld. Commissioner has allowed the Departmental appeal and set aside the impugned Order-in-Original No. 102/VP/2019 dated 27.06.2019. 12. In the instant case, it is seen that Micromax filed Bills of Entry importing mobile phone handsets of CTH 8517 on payment of Additional Duty of Customs @ 6%/ 10%/ 12.5% during the period 2014-15. Consequent to Hon'ble Supreme Court judgement in the matter of SRF Ltd, 2015 (318) ELT, 607 (SC), they filed a consolidated refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any reassessment order or speaking order under Section 17(5) of the 1962 Act and that it was beyond the jurisdiction of the Refund Branch to decide the issue on merits. The officer considering a refund claim cannot sit in appeal over an assessment made by a competent officer. The High Court held that self-assessment is not an assessment order per se and allowed the writ petition. Hence, the appeal by the Union of India. (emphasis supplied) 44. The provisions under Section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re-assessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of the Delhi High Court order dated 26.02.2016 in WP(C) No. 523/2016. However, we note that the Department had filed SLP 26530/2016 in Supreme Court challenging the Delhi HC Order dated 04.04.2016 which merged with several other similar appeals. The Hon'ble Supreme Court delivered the ITC Ltd. vs. Commissioner of Central Excise, Kolkata-IV [2019 (368) E.L.T. 216 (S.C.)] judgment on 18.09.2019. Consequently, the said Delhi High Court order dated 04.04.2016 was set aside by Hon'ble Supreme Court in the ITC judgement. Therefore, the AC (Refund)'s OIO no. 1454/PS/2016 dated 29.08.2016 sanctioning the refund of Rs.18.38 Crores and OIO no. 1372/PS/2016 dated 26.08.2016 sanctioning the refund of Rs. 35.89 Crores but crediting the same to Consumer Welfare Fund stood null and void. 15. We are of the view that once OIO no. 1454/PS/2016 dated 29.08.2016 sanctioning the refund of Rs.18.38 Crores and OIO no. 1372/PS/2016 dated 26.08.2016 sanctioning the refund of Rs. 35.89 Crores has become null and void, the party's appeals before Commissioner (Appeals) and the Commissioner (Appeal)'s OIA no. 664/2019 dated 11.02.2019 and OIA no. 666/2019 dated 11.02.2019 have also been rendered null and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf-assessment done by Micromax while filing Bills of Entry would also amount to assessment. Micromax imported mobile phone handsets of CTH 8517, self assessed the Bills of Entry on payment of Additional Duty of Customs @ 6%/ 10%/ 12.5%. Thereafter, they sought to claim the benefit of S. No. 263A of Notification No.12/2012 dated 17.03.2012 read with amendments and S. No. 132 of Notification no. 01/2011 CE dated 01.03.2011 as amended, which would amount to re-assessment. Re-assessment is done under Sec 17 of Customs Act, 1962, and without re-assessment of the said Bills of Entry, the said benefit under Notification cannot be availed. 19. Sec 128(1) of Customs Act, 1962 states as follows: "128(1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Principal Commissioner of Customs or Commissioner of Customs may appeal to the Commissioner (Appeals)within sixty days from the date of the communication to him of such decision or order:" (emphasis supplied) 20. In the instant case, we observe that Micromax did not file any appeal before Commissioner (Appeals) for re-assessment of the Bills of Entry. Paras 44 & 47 of IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd propositions in the body of the judgment. (i) Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff - whether before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 or thereafter - by mis-interpreting or mis-applying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by mis-interpreting or mis-applying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactment before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226 - and of this Court under Article 32 - cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner (Appeals) on 17.12.2019 i.e. after a period of almost three months. The total time taken by the appellant from 18.07.2015 upto 25.09.2015 and then from 18.09.2019 to 17.12.2019 is much more than the maximum period of the 90 days contemplated under section 128 of the Customs Act. Thus, even though the benefit of section 14 of the Limitation Act for exclusion of time period from 25.09.2015 upto 18.09.2019 would be available to the appellant, but still the 31 appeals would have to be dismissed as having been filed beyond the time period contemplated under section 128(1) of the Customs Act." (emphasis supplied) Consequently, we follow the above Final Order of the Principal Bench, New Delhi and hold accordingly. 28. We now take up the second aspect of unjust enrichment for examination. Revenue has submitted that the importer has passed on the incidence of the duty i.e CVD = 6 % on import of Mobile phones. Hence, un-just enrichment would apply to the instant refund. We proceed to examine this issue. 29. In the OIO dated 29.08.2016, the adjudicating authority has examined in detail the balance sheet and concluded that the refund amount has not been shown as "duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on to the buyer on sale of the same. Thus we are of the view that the incidence of Additional Duty of Customs @ 6% had already been passed and thus, attracting the clause of unjust enrichment. In view of the same, the Commissioner (Appeal)'s order holding that the appellants are entitled for refund of Rs.18.38 cores and Rs 35.89 Cr and remanding the case back to adjudicating authority with a direction to pass fresh order on the basis of CA certificate and other documents is set aside, and the Departmental appeals C/50019/2019 & C/50010/2019 are allowed. 32. Further we have examined the very reliance on SRF judgement by Micromax in claiming this Refund after the Hon'ble Supreme Court judgement in the matter of SRF Ltd vs. Commissioner of Customs, Chennai [2015 (318) ELT, 607 (SC)], dated 26.03.2015, the importer Micromax has claimed benefit of serial No.263A for paying Additional Duty of Customs at the rate of 1% which was available to the manufacturers on fulfilment of condition of non availment of CENVAT credit. The learned Authorized Representative for the Revenue has submitted that the SRF Judgement is applicable only to SRF. Others cannot claim such benefit. 33. Reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espectfully agree with it." (emphasis supplied) 34. Hence we are also of the view that Micromax cannot claim refund on the basis of SRF judgement. Micromax cannot also claim that the judgement of Supreme Court in the case of SRF has" led him to discover the mistake of law under which he has paid the tax. In this regard, we place reliance on CESTAT Order dated 12-08-2024 in M/s Mayur Uniquoters Ltd Vs Commissioner (Appeals), Jaipur and M/S JLC Electromet Pvt Ltd Vs Commissioner (Appeals), Jaipur [2024-TIOL-774-CESTAT-DEL], where in para 9 it is held: "The refund claims were filed relying on the judgment of the Bombay High Court in the case of Mahindra & Mahindra. The appellants themselves have neither contested their own assessments nor have they been modified. The question which arises is can one assessee claim refund on the basis of a decision in the case of another assessee? ........ If a judgment is delivered by a court in a case with respect to an assessee, it does not automatically increase or reduce the liabilities of every other assessee who is similarly placed. Otherwise, it will create utter chaos and confusion. For instance, if the classification of a good is decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals C/51109/2019 and C/51110/2019. Thus, the outcome of both the appeals being in favour of Revenue, the sanction of Refund vide both OIOs dt. 27.06.2019 becomes null and void. 37. The learned Counsels for M/s Micromax Informatics Ltd have relied upon OIO No. 140/2023-24/D.S/DC/Gr.-5A/ACC-IMPORT dated 01.09.2023. This Order was issued in response to Application made by the importer under Section 149/154 of Customs Act, 1962 (CA'62). In the Order the adjudicating authority has allowed the benefit of notifications under Section 149 read with 154 and ordered for consequent re-assessment under Section 17(4)/ 17(5) of CA'62. The Revenue in their post hearing submissions have submitted that the OIO No. 140/2023-24/D.S./DC/Gr.5A/ACC-IMPORT dated 01.09.2023 was not accepted by the Department, and an Appeal No. 13 dated 18.12.2023, was filed by the Department against the said Order before Commissioner (Appeal) Delhi which is pending. However, in view of the categorical decision of the Supreme Court in ITC, this order is not being considered. 38. The application was for amendment under Section 149 of Customs Act, 1962 and not for re-assessment under Section 17. We are of the view tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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