2009 (12) TMI 842 - AT - Customs

Summary

Issues involved: Import of Welding Tools and Spare parts, provisional clearance, refund claim of RD, unjust enrichment, appeal rejection.

In the present case, the appellants imported Welding Tools and Spare parts which were provisionally cleared pending valuation by the SVB of the department. Subsequent to the final SVB order, the appellants filed a refund claim of the RD. The adjudicating authority sanctioned the refund claim but credited it to the Consumer Welfare Fund due to failure to prove non-passing of burden to consumers. The appellants appealed before the Commissioner (Appeals) who rejected the appeal, leading to the current appeal.

Unjust Enrichment Issue:
The learned CA for the appellants argued that it is not a case of unjust enrichment but a recurring deposit paid provisionally, seeking refund upon assessment. They contended that this deposit does not need to be recovered from customers, hence unjust enrichment should not apply.

Observations and Decision:
Upon review, the impugned order highlighted that the amount claimed as refund was not shown as 'recoverable' in the balance sheet but as part of 'expenditure' under 'consumption cost'. The appellants failed to provide evidence to negate the presumption under section 28D. It was noted that the refundable amount had been included in the cost of production, indicating the passing on of the burden to consumers. Consequently, the bar of unjust enrichment was found applicable, and the appellants could not prove non-passing of the payment burden.

Final Decision:
The appellate tribunal upheld the impugned order, rejecting the appeal as no infirmity was found. The decision was pronounced in court, affirming the rejection of the appeal against the refund claim due to the failure to establish non-passing of the payment burden to consumers.