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$~6 to 10 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 27.10.2026 # CNR No. DLHC010208572024 + CUSAA 34/2024

7 # CNR No. DLHC010213652024 + CUSAA 36/2024

8 # CNR No. DLHC010221782024 + CUSAA 38/2024

9 # CNR No. DLHC010246872024 + CUSAA 41/2024

10 # CNR No. DLHC010246882024 + CUSAA 42/2024 PRINCIPAL COMMISSIONER OF CUSTOMS ACC IMPORT NEW DELHI .....Appellant Through: Mr. Aditya Singla, SSC versus MS MICROMAX INFORMATICS LIMITED .....Respondent Through: Mr. Balbir Singh, Sr. Adv. with Mr. Pranav Sarthi, Mr. Ayush Raj, Ms. Disha, Mr. Vedant Kohli, Mr. Vinayak, Ms. Prachi Dhingra, Mr. Utkarsh Vatsa &

Mr Udit Bajpai, Advs.

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CORAM:

HON’BLE MR. JUSTICE AVNEESH JHINGAN HON’BLE MS. JUSTICE SHAIL JAIN AVNEESH JHINGAN, J. (ORAL)

1. The issues involved in all the appeals are similar. For the sake of convenience, the period involved and the relevant dates are tabulated below:

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2. The respondent imported Cellular Phones and mobile parts during the relevant period. Self-assessed Bills of Entry for home consumption were filed classifying the imported goods to be chargeable @ 0% Basic Customs Duty and @ 6% Countervailing Duty (for short ‘CVD’).

2.1 Notification No. 12/2012-CE dated 17.03.2012 was issued granting exemption from excise duty. The notification was amended by Notification No. 4/2014-CE dated 17.02.2014. By Notification No. 12/2015-CE dated 01.03.2015, the exemption granted was made subject to fulfilment of Condition No. 16. The condition is reproduced below:

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“If no credit under rule 3 or rule 13 of the CENVAT Credit Rules, 2004 has been taken in respect of the inputs or capital goods used in the manufacture of these goods.”

2.2 The issue as to whether CVD was leviable on the goods imported by the respondent was decided by the Supreme Court in SRF Ltd. v. Commissioner of Customs, Chennai, (2015) 14 SCC 596. It was held that CVD was not payable on the goods imported during the period in issue.

2.3 The respondent on basis of the decision in SRF Ltd. (supra) applied for a refund of the CVD. The application was ultimately decided by the Commissioner of Customs (Imports) (hereinafter ‘AA’). It was ordered that the refund claimed by the respondent along with interest be credited to the Consumer Welfare Fund (for brevity ‘CWF’) in terms of Section 27(2) of the Customs Act, 1962 (for short ‘the Act’).

2.4 Aggrieved by the Order-in-Original (for short O-I-O), the respondent preferred an appeal before the Commissioner of Customs (Appeals)/First Appellate Authority (for short ‘FAA’) and succeeded. The FAA held that the adjudicating authority had ignored the certificate issued by the independent chartered accountant (for short ‘CA’), the certification by the statutory auditor of the balance sheet for the financial year 2014-15 and 2015-16 and erred in concluding that the CVD paid was made part of the cost of the mobile phones thereby implying that the burden was passed on to the buyers.

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2.5 The appeal filed by the appellant was dismissed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter ‘tribunal’) on 26.09.2023. Hence, the present appeal.

3. Learned counsel for the appellant contends that the production of the certificate issued by the CA in itself is not evidence that the burden of CVD was not passed on to the consumer. It is submitted that the respondent had not shown the amount of refund due as an amount receivable in the balance sheets as on 31.03.2015 and 31.03.2016, fortifying the case of the department that the burden of CVD paid was passed on. It is canvassed that uniformity in prices before and after the change in the CVD payment scenario does not establish that the burden was not passed on to the customers.

4. Learned senior counsel for the respondent submits that no substantial question of law arises. It is contended that the factual findings recorded by the FAA were upheld by the tribunal holding that the case was not of unjust enrichment. It is submitted th