"CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL NEW DELHI PRINCIPAL BENCH – COURT NO. I CUSTOMS APPEAL NO. 51890 OF 2021 (Arising out of Order-in-Appeal No. CC(A)/CUS/D-1/Import/NCH/107/2021-22 dated 05.07.2021 passed by the Commissioner of Customs (Appeals), New Customs House, Near I.G.I. Airport, New Delhi) M/s. Vivo Mobile India Pvt. Ltd. .….Appellant 10th Floor, Emmar Palm Springs Plaza, Gold Course Road, DLF Phase 5, Sector 54, Gurugram, Haryana-122003 VERSUS Commissioner of Customs, .....Respondent Air Cargo Export, New Delhi APPEARANCE: Shri Kishore Kunal, Shri Mahesh Singh and Ms. Runjhun Pare, Advocates for Appellant Shri Girijesh Kumar, Authorized Representative appearing for the Department CORAM: HON'BLE MR. JUSTICE DILIP GUPTA, PRESIDENT HON'BLE MR. C.J. MATHEW, MEMBER (TECHNICAL) Date of Hearing: 17.09.2024 Date of Decision: 17.03.2025 FINAL ORDER NO. 50407/2025 JUSTICE DILIP GUPTA: M/s. Vivo Mobile India Pvt. Ltd.1 has filed this appeal to assail the order dated 05.07.2021 passed by the Commissioner of Customs (Appeals), New Customs House, near IGI Airport, New Delhi2, by which the order dated 15.06.2018 passed by the Assistant Commissioner (Refund) sanctioning refund claim of Rs. 1,67,79,311/- to the appellant under section 27(2) of the Customs Act, 19623 has been modified by directing that it should be credited to the Consumer Welfare Fund instead of being paid to the appellant. 1. the appellant 2. the Commissioner (Appeals) 3. the Customs Act 2 C/51890/2021 2. The appellant is engaged, inter alia, in the business of manufacturing mobiles phones in India. The appellant imported mobile phones between 08.06.2015 and 18.06.2015 for home consumption and paid countervailing duty4 @ 12.5% on the 4 Bills of Entry, as the benefit of the Notification dated 17.03.2012, subsequently amended on 01.03.20155, extending concessional rate of 1% CVD on imports of mobiles phone for home consumption was not extended to the appellant for the said import. 3. The appellant filed an appeal against assessment of the Bills of Entry before the Commissioner (Appeals) with a prayer that the benefit of concessional rate of CVD should also be granted to the appellant in terms of the judgment of the Supreme Court in SRF Ltd. vs. Commissioner of Customs, Chennai6. The Commissioner (Appeals) rejected the appeal filed by the appellant by an order dated 29.06.2016. This order was assailed by the appellant by filing Customs Appeal before the Tribunal. The Tribunal, by a decision dated 05.01.2017, allowed the appeal 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. 4. CVD 5. the Notification 6. 2015 (31B) E.L.T. 607 (SC) 3 C/51890/2021 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 Customs Act. 7. The Assistant Commissioner (Refund), in the said order noticed that the following documents had been filed by the appellant with the refund application: I. Bills of Entry in Original (Importer Copy) duly re-assessed by the concerned group manually. II. Certificate from statutory auditor certifying that the burden of excess CVD has been borne by them and has not passed on to any other person. III. TR-6 Challans. IV. Working sheet of refund claims. V. Declaration by the Importer regarding CVD. VI. Copy of Commissioner of Customs (Appeals) vide Order No. CC(A)CUS/D-I/Import/586- 590/2016 dated 29.06.2016. VII. Copy of CESTAT vide Final Order No. C/ A/ 50035-50038/2017-CU[DB] dated 05.01.2017. VIII. Copy of audited balance sheets for F.Y. 2014- 17 along with copy of ledgers. 8. The Assistant Commissioner (Refund) also noticed that the appellant had paid excess duty of Rs. 1,67,79,311.90/- as the appellant had paid duty amounting to Rs. 1,82,38,382.50/-, though only an amount of Rs. 14,59,070.60/- was required to be paid. 4 C/51890/2021 9. Two issues were thereafter framed by the Assistant Commissioner (Refund), for decision namely: (I) Whether the said refund claim is hit by limitation of time and is therefore liable to rejection? (II) Whether the applicant has proved beyond doubt that the incidence of CVD has not been passed on to the buyers. 10. The findings recorded by the Assistant Commissioner (Refund) on these two issues are as follows: “At the outset, it is essential to find out whether the refund claim submitted by the importer is well within time. The party has filed refund claim application on 13.03.2018 against the excess duty paid by them. Bill of entries has been re-assessed on 09.02.2018. Therefore, the refund claim has been filed well within the time limit of one year from the date of re-assessment. So, the refund claim is not hit by bar of limitation. Hence refund claim is not barred by limitation, as per provision to section 27(1) of the Customs Act, 1962. I further find that the party has submitted their relevant books of accounts and audited financial statement for the year 2015-16 in which the duty recoverable under the head “current assests sub-group (note 13) short- term loans & advances” in “balances with statutory/government authorities”. I found that the burden of CVD has not been passed on by the importer 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 5 C/51890/2021 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) vide C. No. Viii(I)20/R/3115/Gr.A/2017 dated 14.06.2018.” (emphasis supplied) 11. Pursuant to the aforesaid order, the appellant claims to have received the refund amount of Rs. 1,67,79,311/-. The department, however, filed an appeal before the Commissioner (Appeals) on the ground that the refund application was not only barred by limitation, but also for the reason that the amount that was directed to be refunded should have been credited to the Consumer Welfare Fund because otherwise it would result in unjust enrichment to the appellant. 12. The Commissioner (Appeals) decided the appeal by order dated 05.07.2021 holding that though the refund claim was filed within the time prescribed under section 27 of the Customs Act, but as the bar of unjust enrichment was not crossed, the refund amount should be credited to the Consumer Welfare Fund. The relevant portions of the finding recorded by the Commissioner (Appeals) are reproduced below: 6 C/51890/2021 “5.4 Next issue is to decide whether the claim is hit by bar of unjust enrichment or not. I note that the Appellant is right in contending that Current Assets Note 13 refers to Cash and Cash Equivalent and this has no reference to customs duty recoverable. However, under Note 9-Loans & Advances, Customs duty receivable has been shown as Rs. 17,38,94,156/-. However, I fail to understand how the Refund Sanctioning Authority derived the conclusion that the amount of Rs. 1,67,79,311/- was included in said stated amount of Rs. 17,38,94,156/- shown in the Balance Sheet for Financal Year 2015-16. The Respondent has also not adduced any evidence in this regard in their response to appeal filed by the Department. The entire Balance Sheet of Financial Year 2015-16 does not contain any breakup or details of Rs. 17,38,94,156/- from which it can be concluded that the refund amount of Rs. 1,67,79,311/- was part of said amount. 5.4.1. I further note that the Refund Sanctioning Authority relied upon certificate dated 09.04.2018 of Sh. D.K. Munjal, Charted Accountant and Proprietor of M/s. D.K. Munjal & Associates. First of all, the said Charted Accountant was not the firm which audited the balance sheet of Finance Year 2015-16. Further the certificate dated 09.04.2018 is not in respect of impugned refund of Rs. 1,67,79,311/- which is related of finally assessed bills of entry while the certificate dated 09.04.2018 referred to provisionally 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: ***** 7 C/51890/2021 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) 13. This appeal has been filed by the appellant to assail that part of the order dated 05.07.2021 passed by the Commissioner (Appeals) that directs that the refund amount should be deposited in the Consumer Welfare Fund, instead of it being paid to the appellant. 14. Shri Kishore Kunal, learned counsel for the appellant assisted by Shri Mahesh Singh and Ms. Runjhun Pare, made the following submissions: (i) The finding on unjust enrichment rendered by the Commissioner (Appeals) is beyond jurisdiction and has been recorded without following the mandatory procedure of section 128A(3) of the Customs Act. In this connection reliance has been placed on the following decisions: (a) Prime Furnishing Pvt. Ltd. vs. Commissioner of Customs, New Delhi7; (b) Udai Bhaskar Rao vs. Commissioner of Central Excise, Kanpur8; 7. 2009 (246) E.L.T. 335 (Tri. – Del.) 8 C/51890/2021 (c) Adhavan Processors (P) Ltd. vs. Commissioner of C. Ex., Salem9; (ii) The finding recorded by the Commissioner (Appeals) on unjust enrichment is perverse, illegal and contrary to settled principles of law. To elaborate this submission, learned counsel pointed out that the Certificate issued by the Chartered Accountant and the entries in the Books of Accounts of the appellant clearly established that the initial burden of proof required under section 28D of the Customs Act was satisfied by the appellant. However, the order passed by the Commissioner (Appeals) completely ignores Note 9 of the Balance Sheet that explicitly shows “Customs Duty Receivable” of Rs. 17,38,94,156/- from the customs for the year ended 31.03.2016. Learned counsel, therefore, submitted that an adverse conclusion could not have been drawn by the Commissioner (Appeals) merely for the reason that there was no separate mention of the amount of refund of the relevant Bills of Entry in the Balance Sheet; (iii) It is a settled law that when the customs duty is reflected to be receivable in the Books of Accounts, the burden of duty would not be passed to the customers and would be borne by the assessee itself. In this regard, reliance has been placed on the following decisions: (a) Bridgestone India Pvt. Ltd. vs. CGST CC and CCE, Indore10; (b) Commissioner of Cus., Tuticorin vs. Virudhunagar Textile Mills Ltd.11; 8. 2002 (142) E.L.T. 414 (Tri. – Chennai) 9. 2004 (178) E.L.T. 709 (Tri. – Chennai) 10. Excise Appeal No. 50610 of 2018 decided on 30.07.2018 11. 2008 (230) E.L.T. 411 (Mad.) 9 C/51890/2021 (c) Commissioner of C. Ex. & Cus. vs. Manisha Pharmoplast Pvt. Ltd.12; (d) IOC Ltd. vs. Commissioner of Central Excise, Meerut13; (e) Eveready Industries India vs. Commissioner of C. Ex., Lucknow14; (f) Commissioner of C. Ex., Lucknow vs. Eveready Industries India Ltd.15; (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 is no explicit reference to the specific amount in question, it cannot be said that the refund amount was included in the figure of Rs. 17,38,94,156/-; (ii) No reliance could have been placed on the Certificate issued by the Chartered Accountant as it lacks explicitness; 12. 2008 (222) E.L.T. 511 (Guj.) 13. 2016 (335) E.L.T. 313 (Tri. – All.) 14. 2015 (323) E.L.T. 612 (Tri. – Del.) 15. 2017 (357) E.L.T. 11 (All.) 10 C/51890/2021 (iii) The refund sanctioning authority has not given any finding with regard to the provisions of section 28C and 28D of the Customs Act; and (iv) A Certificate issued by the Chartered Accountant cannot be a conclusive proof of the fact that incidence of duty has not been passed on. In this connection, reliance has been placed on the decision of the Tribunal in Commissioner of Customs, ICD, New Delhi vs. Kohinoor India Ltd.16. 16. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 17. The issue that arises for consideration in this appeal is whether the sanctioned refund amount, in the facts and circumstances of the case, could have been directed to be deposited in the Consumer Welfare Fund instead of it being paid to the appellant. 18. It is, therefore, clear that there is no dispute that the appellant had paid an excess amount of Rs. 1,67,79,311.90/- towards CVD and that the refund claim was filed within time. 19. While examining the issue of unjust enrichment, the Assistant Commissioner (Refund) noticed that the appellant had submitted relevant Books of Account and audited Financial Statement for the year 2015-16 in which the duty recoverable was shown under the head “Current Assests Sub-Group (Note 13) Short-term Loans & Advances” in “Balances with Statutory/government authorities”. The Assistant Commissioner (Refund) also noted that the appellant had submitted a Chartered Accountant Certificate dated 09.04.2018 certifying that the burden of duty under the 16. 2014 (304) E.L.T. 102 (Tri. – Del.) 11 C/51890/2021 refund claim had not been passed on to the buyers and the amount that was claimed was shown in the Books of Account/Balance Sheet as amount recoverable from the customs. The Assistant Commissioner (Refund) further recorded a finding that the appellant had discharged the statutory obligation cast upon him of rebutting the presumption of unjust enrichment and, therefore, the burden of duty had not been passed to the buyers. It is for this reason that the Assistant Commissioner (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 passed on to the buyers. 21. The appellant had placed much emphasis on the Balance Sheet and the Notes forming part of the Financial Statement for the year ended 12 C/51890/2021 31.03.2016 as also on the Certificate dated 09.04.2018 issued by the Chartered Accountant. 22. It would, therefore, be appropriate to reproduce Note 9, on which reliance has been placed both by the Assistant Commissioner and the Commissioner (Appeals). It is reproduced below: 9) Loans and Advances Particulars Non Current Current As at 31st March, 2016 As at 31st March, 2015 As at 31st March, 2016 As at 31st March, 2015 Security deposits 4,81,46,787 96,03,312 - - Advances recoverable in cash or king 4,81,46,787 96,03,312 - - Unsecured, considered good Advances to supplies - - - - Other loans and advances - - - - Unsecured, considered good Advances to supplies - - - Income tax deducted at source - - 1,34,245 Prepaid expenses - - 43,25,00,000 40,24,660 CENVAT Receivable - - 2,24,447 Advance Excise duty - - 5,08,875 VAT Receivables - - 5,57,192 2,38,275 Customs Duty Receivable - - 17,38,94,156 3,25,33,211 Advance to Supplier - - 9,02,94,213 2,65,66,715 Entry Tax Receivable 1,69,622 - (emphasis supplied) 23. The Certificate dated 09.04.2018 issued by the Chartered Accountant is reproduced below: “TO WHOMSOEVER IT MAY CONCERN Based on the examination of Financial Statements, details and documents produced before us and as per the information and explanation provided to us of M/s vivo Mobile India Private Limited (“the Company”) having its registered office at 10th & 11th Floor, Palm Springs Plaza (Complex) Village Wazirabad, Sector-54 13 C/51890/2021 Gurugram, Haryana-122003, we hereby confirm that the Company having IEC No. 0514053739, has imported mobile phones and paid Custom Duty (CVD) on the basis of provisional bills of entry. At the time of filing the provisional bills of entry, the Company paid CVD @ 12.5%. Now these provisional bills of entry have been finalized/reassessed by the Hon'ble Deputy Commissioner of Customs Group VA and the Duty payable has been assessed @ 1% Only. This resulted into excess duty paid by the Company and same is refundable to the Company. Further the aforementioned amount has been accounted as “Custom Duty Receivable” 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: 14 C/51890/2021 “TO WHOMSOEVER IT MAT CONCERN This Certificate is issued to Vivo Mobile India Private Limited (“Vivo”) having its registered office at 10th & 11th Floor, Emmar MGF Palm Springs Plaza, Golf Course Road, DLF Phase-5, Sector 54, Gurgaon with respect to excess Additional Duty of Customs (“CVD”) levied under Section 3 (1) of the Custom Tariff Act, 1975 and the Education Cess paid during the period June, 2015. In this regard, we have gone through the books of account and records maintained by Vivo for the relevant year Financial Year 2015-16. We had initially issued a Certificate dated 09.04.2018 certifying that Vivo had paid excess CVD at 12.5% instead of the applicable 1% CVD which was accounted as “Customs Duty Receivable” reflected in the Balance Sheet. In furtherance to the said Certificate dated 09.04.2014, after going through the books of accounts and the balance sheets maintained by Vivo, we are certifying that: (a) Vivo had paid excess CVD amounting to Rs. 1,67,88,778/- (Rupees Once Crore Sixty- Seven Lakhs Eighty-Eight Thousand Seven hundred and seventy-eight only) on cellular mobile phones imported vide 4 (four) Bills of Entry during the relevant period, the details of which are as follows: SN. BoE No. and Date CVD Paid Challan Details CVD Payable Excess CVD 1. 9501365 dt. 08.06.2015 25,93,573.60 09.06.2015 2,06,728.60 23,86,845.00 2. 9514552 dt. 09.06.2015 53,64,125.00 10.06.2015 4,29,130.00 49,34,995.00 3. 9538039 dt. 11.06.2015 43,32,900.00 12.06.2015 3,46,632.00 39,86,268.00 4. 9614231 dt. 18.06.2015 59,57,250.00 19.06.2015 4,76,580.00 54,80,670.00 Total 1,82,38,382.50 14,59,070.60 1,67,88,778.00 15 C/51890/2021 (b) The abovesaid amount of CVD and Cess was paid by Vivo at 12.5% even when the benefit of Serial No. 263A of Notification No. 12/2012-CE dated 17.03.2012 was available to them which grants the benefit of reduced rate of CVD at 1%. Accordingly, the excess amounts paid by Vivo were refundable to Vivo. On this basis, the above Bills of Entry have also been reassessed by the Hon'ble Deputy Commissioner of Customs and communicated vide letter C. No. VIII/12/Acc-Imports/Gr.-VA/2444/2018 as part of a group of 27 Bills of Entry which were reassessed. (c) Vivo has considered the abovesaid amount of Rs. 1,67,88,778 as part of “Customs Duty Receivable” under the major head of “Loans and Advances” in the Financial Statements of 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 16 C/51890/2021 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. Delhi port 4% SAD refund – July to Sept 2015 8,84,673 10. Mumbai port 4% SAD refund – Oct to Dec 2015 9,88,145 11. Delhi port 4% SAD refund – Nov to DEC 2015 15,16,196 12. Delhi port 4% SAD refund – Oct 2015 30,91,859 13. Delhi port 4% SAD refund – Jan 2016 to March 2016 15,51,192 14. Mumbai port 4% SAD refund – Jan 16 to Mar 2015 13,80,856 15. SFR refund 08.06.2015 to 18.06.2015 1,67,88,778 16. SFR refund 16.06.2015 to 15.07.2015 8,05,06,285 Total 17,38,94,156 (emphasis supplied) 25. A perusal of the Certificate dated 31.01.2024 provided by the Chartered Accountant in furtherance of the earlier Certificate dated 09.04.2018 is explicit. The Chartered Accountant has clearly stated the amount of Rs. 1,67,88,788/- was paid as excess CVD by the appellant and this amount was included in the amount of Rs. 17,38,94,156/- which was shown as “customs duty receivable” in the Financial Statement for the year ended 31.03.2016. The Annexure to this Certificate also gives a breakup of the “customs duty receivable” to the extent of Rs. 17,38,94,156/- and includes the amount of Rs. 1,67,88,788/-. 26. It needs to be noted that Note 9 to the Financial Statement for the year ended 31.03.2016 clearly shows that the customs duty receivable by the appellant as on 31.03.2016 was Rs. 17,38,94,156/- against an amount of Rs. 3,25,33,211/- on 31.03.2015. The Assistant Commissioner (Refund) placed reliance upon this Note. However, the Commissioner (Appeals) observed that it cannot be concluded from this Note that the amount of Rs. 1,67,79,311/- was included in the amount of Rs. 17,38,94,156/- shown as “customs duty receivable”. The Chartered Accountant Certificate dated 09.04.2018 clearly mentions that at the time of filing the provisional Bills of 17 C/51890/2021 Entry, the appellant had paid CVD @ 12.5% and the said Bills of Entry have been finalized/re-assessed, holding that the appellant was required to pay duty only @ 1%. The Certificate also mentions that the appellant had paid excess duty which was required to be refunded. The Certificate also notes that this amount has been accounted as customs duty receivable in the Balance Sheet. A conjoint reading of Note 9 and the Certificate would clearly show that Rs. 1,67,79,311/- was receivable by the appellant from the customs department. If the Commissioner (Appeals) was not to place reliance 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 had been finalized/re-assessed by the Deputy Commissioner of Customs and only 1% CVD was payable and as only 1% CVD was payable, 18 C/51890/2021 the appellant had paid excess duty which has to be refunded to the appellant. There is no requirement in law that the Certificate should be issued only by statutory auditors. A Certificate issued by a Chartered Accountant can be accepted if it is consistent with the accounts, such as the Financial Statement. 29. The appellant had basically relied upon two documents to support his contention that the burden of duty had not been passed on to the customers. These two documents are the Financial Statement and the Certificate issued by the Chartered Accountant. The appellant also contended that as the appellant had proved by filing the Financial Statement and the Chartered Accountant Certificate that the incidence of duty had not been passed on to the buyer of goods and that it was receivable by the appellant from the customs, the requirement of section 28D of the Customs Act that provides that every person who has paid duty on any goods under the Customs Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods stood satisfied as “the contrary” was proved by the appellant. 30. In support of the aforesaid conclusions drawn in this order, it would be appropriate to refer to certain decisions. 31. In Principal Commissioner of Customs vs. Telecare Network (India) Pvt. Ltd.17, the Delhi High Court approved the following findings recorded by the Tribunal: “8. Dealing with the objection of unjust enrichment, the CESTAT has in paragraph 18 held as follows:- “18. ***** As far as the unjust enrichment is concerned, from the Chartered Accountant’s certificate it is evident that the duty was not passed on 17. (2023) 13 Centax 8 (Del.) 19 C/51890/2021 and it was treated by the respondent as a receivable. Revenue has not produced even a shred of evidence either to establish that the Chartered Accountant’s certificate was wrong or to establish that the duty was indeed passed on to the buyers. Learned special counsel also asserted that M/s Naveen Associates were not the statutory auditors of the respondent. Learned counsel for the respondent asserts that they were their statutory auditors during the relevant period. In the absence of any evidence by the Revenue on this count, the 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 20 C/51890/2021 Department is not satisfied with the certificate of the Chartered Accountant and the balance sheet of the respondent company, they would have very well made a physical verification as to the availability of the capital goods with the respondent textile mills. 17. On the above said undisputed fact, we have come to the conclusion that there is no possibility for the respondent or there is no material on the part of the department to contend that by refund of the differential duty, the respondent has unjustly enriched. The authorities under the Act with closed mind have mechanically applied the concept of unjust enrichment against the respondent.” (emphasis supplied) 33. In Jindal Stainless Ltd. vs. Commr. of Cus. & Service Tax, Visakhapatnam18, the Tribunal observed: “2. ***** Learned Counsel for the appellant submits today that they have, accounted the differential of Customs duty paid as “receivables” as they were expecting the amount to be received as refund from the department. They have only added the final amount of Customs duty assessed to the cost of raw materials and therefore they are entitled for refund of the differential duty and are not hit by the clause of unjust enrichment. In support of this, he filed an affidavit by the Assistant Manager of the company and cost accountant certificates along with an abstract of the balance sheet. The balance sheet does show as a heading “balance with excise sales tax authorities”. The certificate of the cost accountant indicated that the differential custom duty was included in this receivables account. I do not find any evidence to the contrary in the records before me. Evidently, the amount is added in the books of accounts as “amount receivables” and not as “cost of raw materials” and it could not have been passed on indirectly to the customers. In view of the above, I find 18. 2020 (371) E.L.T. 784 (Tri. – Hyd.) 21 C/51890/2021 that the appellant is entitled to refund of the differential duty and their claim is not hit by the clause of unjust enrichment.” (emphasis supplied) 34. In Principal Commissioner of Customs, ACC (Import) Commissionerate vs. Telecare Network (India) Pvt. Ltd.19, the Tribunal observed as follows: “16. When goods are manufactured or imported land sold there are two ways of treating the cost of the goods - either take the cost of the goods plus all taxes as the cost of the goods 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 counsel.” (emphasis supplied) 19. (2023) 13 Centax 7 (Tri. – Del.) 22 C/51890/2021 35. It clearly transpires from the aforesaid decisions that when a Certificate of a Chartered Accountant is submitted by an assessee to substantiate that the assessee would not be unjustly enriched, then it is for Revenue to establish by evidence that either the Certificate issued by the Chartered Accountant is incorrect or that the duty was actually passed on to the buyers. The decisions also hold that 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. The decisions 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. 36. 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. 37. The decision of the Tribunal in Kohinoor India, 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 help the department. 23 C/51890/2021 38. In view of the aforesaid factual position and the decisions referred to above, it is evident that the appellant had not passed the burden of duty to the customers in respect of the duty paid on the 4 Bills of Entry and was shown as recoverable from the customs department. 39. The Commissioner (Appeals), therefore, committed an illegality in holding that the appellant had not established that the burden of duty had not been passed to the customers. 40. The impugned order dated 05.07.2021, to the extent it holds that refund amount should be credited in the Consumer Welfare Fund, therefore, deserves to be set aside and is set aside. The appellant would be entitled to refund of the amount with interest. The appeal is, accordingly, allowed. (Order pronounced on 17.03.2025) (JUSTICE DILIP GUPTA) PRESIDENT (C.J. MATHEW) MEMBER (TECHNICAL) Shreya, Jyoti "