Order date – 24 March 2023

Parties - Principal Commissioner of Customs Vs M/s Telecare Network (India) Pvt. Ltd.

Facts –

• The Respondent, M/s Telecare Network (India) Pvt. Ltd., imports and sells mobile phones in India.
• Notification No. 12/2012-CE dated 17.03.2012 exempts mobile sets from excise duty in excess of 1% ad valorem subject to the condition that no Cenvat credit was availed on the inputs used in the manufacture of such goods. 
• The respondent filed a refund claim on 24.06.2016 seeking refund of the excess additional duty of customs paid during the period 26.03.2015 to 22.06.2015. This application for refund was initially rejected by the Assistant Commissioner by order in original dated 07.03.2017.
• Aggrieved by the rejection, the respondent filed a writ petition before the Hon‟ble High Court of Delhi which was decided on 06.08.2018 in favour of the respondent.
• The Assistant Commissioner, by order dated 14.11.2015, sanctioned the refund. 
• Revenue filed an appeal before the Commissioner (Appeals) who, by the impugned order, upheld the order in original of the Assistant Commissioner and rejected Revenue‟s appeal. Hence the revenue has filed the present appeal on the grounds of limitation and unjust enrichment.

Issue –

• Whether the refund claimed by the respondent is time barred and seeking unjust enrichment?

Order –

• The Tribunal is of the view that the issue of claim being time barred was already decided by the High Court and the Assistant Commissioner and Commissioner (Appeals) were bound to have followed the order of the High Court as they did.
• Additionally the Tribunal mentioned that as far as unjust enrichment is concerned, from the Chartered Accountant’s certificate it is evident that the duty was not passed on and it was treated by the respondent as a receivable.
• Further, with respect to the contention made by the Learned special counsel that M/s Naveen Associates were not the statutory auditors of the respondent the Tribunal held that 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. 
• The present appeal is dismissed with consequential relief, if any to the respondent, and stay application also stands disposed of.