2025-VIL-399-CESTAT-DEL-CU
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CUSTOMS CESTAT Cases

Customs – Refund of CVD, Unjust Enrichment - Appellant imported mobile phones paying Countervailing duty (CVD) at 12.5% under protest - After re-assessment, the appellant was required to pay only 1% CVD. The appellant filed a refund claim of the excess amount paid, which was initially sanctioned. However, the department challenged the refund order before the Commissioner (Appeals), who held that the refund amount should be credited to the Consumer Welfare Fund as the appellant failed to prove that the burden of duty was not passed on to the customers - Whether the appellant had sufficiently proved that the burden of the excess CVD paid was not passed on to the customers, and therefore, the refund amount should be paid to the appellant instead of being credited to the Consumer Welfare Fund - HELD - The appellant had sufficiently proved that the burden of the excess CVD paid was not passed on to the customers - The Tribunal relied on the Financial Statements and the Certificates issued by the Chartered Accountant to conclude that the excess CVD paid was shown as a "Customs Duty Receivable" in the Books of Accounts, which indicated that the burden of duty was not passed on to the customers - there is no requirement in law that the Certificate should be issued only by statutory auditors, for so long as the Certificate is issued by a Chartered Accountant and it is consistent with the accounts such as the Financial Statement, the Certificate issued by a Chartered Accountant should be accepted - once the appellant had proved that the burden of duty was not passed on, the legal presumption under Section 28D of the Customs Act stood rebutted and the burden shifted to the Revenue to prove otherwise, which they failed to do. The Tribunal relied on several decisions that held that when the differential customs duty is shown as "receivables" in the Balance Sheet/Financial Statement, it would follow that the duty has not been passed on to the customers, and the legal presumption under Section 28 of the Customs Act stands rebutted - the impugned order of the Commissioner (Appeals) is set aside and the appellant is entitled to the refund of the excess CVD paid, along with interest – The appeal is allowed
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