2009 (7) TMI 1040 - AT - Customs

Refund claim - unjust enrichment - rejection on the ground that machine was not covered under EPCG Scheme - Held that - there is no dispute that imported machine was cleared under EPCG Scheme. The affidavit indicates that the imported machine was used for the exported goods. It is also declared that the goods manufactured were exported in global market at international competitive prices. This fact was not disputed by the Commissioner (Appeals). It is noted that Government is providing export incentives so as to make the manufacturer to compete in international market. So there is no scope to pass incidence of duty to foreign buyers. Hence the appellant established that the amount of duty in relation to which refund was claimed was not collected from any other person - appeal allowed - decided in favor of appellant.

Summary

Issues:
Exemption of CVD benefit under Notification No. 29/97-Cus.
Applicability of doctrine of unjust enrichment.
Verification of evidence supporting non-passing of duty incidence.
Interpretation of Rule 27 of the Customs Act, 1962.

Analysis:
The case involved the import of a "Circular Knitting Machine" under the EPCG Scheme, with a claim for exemption of CVD benefit under Notification No. 29/97-Cus. The Bill of Entry was assessed denying the exemption, leading to a refund claim rejection based on the machine not being covered under the scheme. The Tribunal remanded the matter to consider evidence on non-passing of duty incidence. The Original Authority, after unjust enrichment assessment, sanctioned the refund. However, the Revenue appealed, arguing unjust enrichment under Section 27(2) of the Customs Act, 1962.

The Revenue contended that the appellant failed to provide sufficient evidence supporting non-passing of duty incidence, citing captive use of the imported machine in manufacturing final products and referring to legal precedents. The Commissioner (Appeals) upheld the appeal, invoking the doctrine of unjust enrichment.

Upon review, it was found that the exemption under Notification No. 29/97-Cus. applied to capital goods imported under the EPCG Scheme for export production, with the importer bound by an export obligation. The appellant's affidavit indicated the machine's use in manufacturing goods for export at competitive prices, with no duty incidence passed to foreign buyers. Rule 27 of the Customs Act required evidence that duty was not passed on, which the appellant provided through the affidavit.

The Commissioner (Appeals) noted the lack of additional evidence beyond the affidavit but did not dispute the export details provided. The judgment emphasized the government's export incentive purpose and the appellant's compliance with export requirements, concluding that duty incidence was not shifted to foreign buyers. Citing the Solar Pesticide Pvt. Ltd. case, the judgment affirmed that even for captive consumption, the principle of unjust enrichment applied. Consequently, the Commissioner's decision was overturned, and the Original Authority's order approving the refund was reinstated, allowing the appellant's appeal.