The Delhi Bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has quashed the order directing Rs. 1.67 crore refund to consumer welfare fund instead of Vivo.
The bench of Justice Dilip Gupta (President) and C.J. Mathew (Technical Member) has observed that the Commissioner (Appeals) committed an illegality in holding that the appellant had not established that the burden of customs duty had not been passed to the customers.
The appellant/assessee, M/s. Vivo Mobile India Pvt. Ltd. has filed the appeal to assail the order passed by the Commissioner of Customs (Appeals), New Customs House, near IGI Airport, New Delhi, by which the order passed by the Assistant Commissioner (Refund) sanctioning refund claim to the appellant under section 27(2) of the Customs Act, 1962 has been modified by directing that it should be credited to the Consumer Welfare Fund instead of being paid to the appellant.
The appellant/assessee, Vivo is engaged in the business of manufacturing mobiles phones in India. The appellant imported mobile phones for home consumption and paid countervailing duty @ 12.5% on the 4 Bills of Entry, as the benefit of the Notification dated 17.03.2012, subsequently amended on 01.03.2015, extending concessional rate of 1% CVD on imports of mobiles phone for home consumption was not extended to the appellant for the said import.
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, Chennai.
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.
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.
The appellant submitted the 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.
The Commissioner (Appeals) decided the appeal by order 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 tribunal held 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.
The tribunal opined that 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.
Case Details
Case Title: M/s. Vivo Mobile India Pvt. Ltd. Versus Customs Commissioner
Case No.: Customs Appeal No. 51890 Of 2021
Date: 17.03.2025
Counsel For Appellant: Kishore Kunal
Counsel For Respondent: Girijesh Kumar
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