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Cus – Assessee initially filed refund claim which was returned & then re-submitted – initial filing of refund claim is date of filing: CESTAT

2019-TIOL-2029-CESTAT-AHM

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH, AHMEDABAD
REGIONAL BENCH
COURT NO. III

Customs Appeal No. 11639 of 2017-SM

Arising out of OIA-AHD-CUSTM-000-APP-024-027-17-18
Passed by Commissioner of CUSTOMS-AHMEDABAD

WITH
Customs Appeal No. 11640 of 2017-SM

Arising out of OIA-AHD-CUSTM-000-APP-024-027-17-18
Passed by Commissioner of CUSTOMS-AHMEDABAD

Date of Hearing: 08.02.2019
Date of Decision: 03.06.2019

M/s NOKIA INDIA SALES PVT LTD
10TH FLOOR, TOWER C, DLF BUILDING NO 5
DLF CYBER CITY, GURGAON, HARYANA-122002

Vs

COMMISSIONER OF CUSTOMS
AHMEDABAD, CUSTOM HOUSE, NEAR ALL INDIA RADIO
NAVRANGPURA, AHMEDABAD-380009

Appellant Rep by: Shri P Parajape, Adv.
Respondent Rep by: Shri S K Shukla, (AR)

CORAM: Ramesh Nair, Member (J)

Cus – The assessee-company imported mobile phones during the relevant period and paid 6% CVD – Later, as per the verdict of the Apex Court in SRF Industries Ltd. vs C.C. exemption was allowed to the assessee, whereupon CVD was payable @ 1% – The assessee filed refund claim for CVD paid in excess – On adjudication, the refund was rejected on grounds of unjust enrichment – On limitation, it was held that period for filing refund claim would be reckoned from one month of the Apex Court’s judgment – On appeal, the Commr.(A) upheld such findings – Hence the present appeals by the assessee on grounds of unjust enrichment & time bar.

Held: As regards the time bar, the refund will not arise as from the date of the Apex Court’s judgment in SRF Industries, the assessee was not the litigant – However the law applies to the assessee’s case also subject to refund is filed within one year from the relevant date – In the present case, the relevant date will be date of payment of duty and not from the date of the Apex Court’s order – The assessee initially filed the refund claim which was returned & then re-submitted – Hence the initial filing of refund claim shall be considered the date of filing of refund claim & if the same is within one year from date of payment of duty, then the same cannot be rejected on time bar – Regarding unjust enrichment, while the assessee submitted CA’s certificate, no documentary evidence was submitted to support its claim such as price structure of mobile, pre and post-payment of excess Customs duty – No books of accounts were furnished – Hence the matter warrants remand to the adjudicating authority for passing a fresh order: CESTAT

Case remanded

Case laws cited:

SRF Industries Ltd. vs C.C – 2015-TIOL-74-SC-CUS… Para 1

CCE Bolpur vs Bhandiguri Tea Estate 2001 (134) ELT 116 (Tri. Kol.)… Para 2

Rubberwood India vs CC Cochin 2006 (206) ELT 536 (Tri. Bang.)… Para 2

CC New Delhi vs Organan (India) – 2008-TIOL-251-SC-CUS… Para 2.1

Cadbury India Ltd. vs UOI – 2014-TIOL-1961-HC-KERALA-CUS … Para 2.1

ACC vs CCE, Jamshedpur 2001 (130) ELT 277 (Tri. Kol.)… Para 2.1

FINAL ORDER NOS. A/10958-10959/2019

Per: Ramesh Nair:

The brief facts of the case are that the appellant on import of mobile phones paid CVD @6%. Subsequently, in the judgment of SRF Industries Ltd. vs C.C. 2015 (318) ELT 607 (SC) = 2015-TIOL-74-SC-CUS Of Hon’ble Supreme Court, the exemption notification was allowed according to which CVD is payable @1%. The appellant filed refund claim for the excess paid CVD on the basis of said SRF Industries judgment. The original authority rejected the refund claim on the ground of unjust enrichment however on limitation he held that period for filing refund claim in the present case will be reckoned from one month of Hon’ble Supreme Court judgment in the case of SRF Industries. Being aggrieved by the order-in-original, appellant filed appeal on the issue of unjust enrichment. Revenue also filed appeal on the issue of time bar. Ld. Commissioner (Appeals) allowed the appeal of Revenue and rejected the appeal of appellant, therefore, the present appeal was filed by the appellant on both the issues of unjust enrichment and time bar.

2. Sh. P. Paranjape, Ld. Counsel appearing on behalf of the appellant submits that though the entire refund was rejected but the part of the refund is well within one year from the date of payment which cannot be held time bar. He further submits that the appellant admittedly filed refund claim initially on 19.11.2015 and 09.10.2015 respectively related to both the appeals. The refund application was returned by the department and subsequently it was resubmitted along with Chartered Accountant Certificate. The date of initial submission of refund should be reckoned. He placed reliance on the following judgments:

– CCE Bolpur vs Bhandiguri Tea Estate 2001 (134) ELT 116 (Tri. Kol.)

– Rubberwood India vs CC Cochin 2006 (206) ELT 536 (Tri. Bang.)

2.1 As regard unjust enrichment, he submits that since the price of mobile phones at the time of payment of CVD @ 6% and subsequently remain same, therefore, there is no passing on the incidence on excess paid CVD to any person. He further submits that to this effect a Chartered Accountant Certificate was submitted which was discarded by the lower authority. He placed reliance on the following judgments:

– CC New Delhi vs Organan (India) 2008 (231) ELT 201 (SC) = 2008-TIOL-251-SC-CUS

– Cadbury India Ltd. vs UOI 2015 (315) ELT 488 (Kar. HC) = 2014-TIOL-1961-HC-KERALA-CUS

– ACC vs CCE, Jamshedpur 2001 (130) ELT 277 (Tri. Kol.)

3. Sh. S.K. Shukla, Ld. AR appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that the appellant since not submitted any document regarding unjust enrichment which is recorded in both the orders, they have only submitted Chartered Accountant Certificate, therefore, their claim was rightly rejected being time barred and on the ground of unjust enrichment.

4. I have carefully considered the submission made both the sides and perused the records. I find that as regard the time bar the refund will not arise as from the date of Hon’ble Supreme Court judgment in the case of SRF Industries, the appellant was not the litigant, however the law applies to the appellant case also subject to refund is filed within one year from the relevant date. In the present case, the relevant date will be a date of payment of duty and not from the date of order of Hon’ble Supreme Court in the case of SRF Industries. However, the appellant initially the filed the refund claim which was returned and then they resubmitted subsequently. In this case the initial filing of refund claim shall be considered as date of filing of refund claim and if it is within one year from the date of payment of duty then the same cannot be rejected on time bar. As regard unjust enrichment, I find that the appellant have submitted only Chartered Accountant Certificate however they have not submitted any documentary evidence in support of their claim such as the price structure of the mobile, pre and post payment of excess custom duty they also not submitted their books of accounts in this regard, therefore, I am of the view that the matter needs to be remitted back to the adjudicating authority for passing a fresh order in view of my observation. The appellant shall submit the necessary documentary evidence to support their claim that the incidence of excess paid duty was not passed on. The impugned order is set aside. Appeal is allowed by way of remand to the adjudicating authority.

(Pronounced in the open court on 03.06.2019)

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