Legal principle

Once an importer produces a Chartered Accountant's certificate supported by the balance sheet showing the duty incidence was not passed on—particularly where the duty was paid under protest—the onus shifts to the department to falsify those documents, and a remand to re-verify unjust enrichment is unsustainable.

Court decision

The Tribunal allowed the importer's appeal, holding that the Commissioner (Appeals)'s finding directing the original authority to revisit the issue of unjust enrichment was unsustainable, and granted consequential relief, if any, in accordance with law.

Facts

M/s. United Telelinks (Bangalore) Ltd. imported mobile phones and filed 133 Bills of Entry under self-assessment, classifying them under CTH 85.17 with concessional CVD of 1%. The department rejected the self-assessment and demanded CVD at the full rate of 12.5%, whereupon the appellant paid the excess CVD under protest. After the adjudicating authority (Order-in-Original No.66/2017 dated 24.01.2017) held the appellant eligible for exemption under Sl.No.263A of Notification No.21/2012-CE dated 17.03.2012 (also referred to as No.12/2012-CE in the extract), the appellant claimed refund of the excess CVD supported by certificates confirming no input Cenvat credit was availed and that the refund was shown as a receivable. The Deputy Commissioner (Refund) sanctioned a refund of Rs.15,91,88,963 on 03.03.2017, but on the department's appeal the Commissioner (Appeals) remanded the matter for reconsideration of unjust enrichment, prompting the present appeal before the Tribunal.

Key provisions

• Section 28C, Customs Act, 1962 — Price of goods to indicate the amount of duty paid thereon
• Section 28D, Customs Act, 1962 — Presumption that incidence of duty has been passed on to the buyer