2010 (8) TMI 955 - AT - Customs

Unjust enrichment - refund claims have been sanctioned but credited to Consumer Welfare Fund on the ground that appellants failed to show that they have not passed on the liability to their customers - Held that - This is a clear case of payment of differential duty after the assessment or finalization, and assessments were finalized prior to 13.7.2006 - the case is squarely covered by the decision in the case of COMMISSIONER OF CUSTOMS, KANDLA Versus HINDUSTAN ZINC LTD. 2009 (2) TMI 100 - CESTAT AHMEDABAD , where it was held that when provisional assessment is finalized, the assessee is entitled to refund and he does not have to make the claim. Therefore, the provisions of Section 27 is not attracted. The appellant is not required to prove the unjust-enrichment - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Refund of excess duty paid on imported vessels.
2. Crediting refund to Consumer Welfare Fund due to failure to prove non-passing of liability to customers.
3. Applicability of unjust enrichment principle in the case.

Refund of Excess Duty Paid:
The appellants had imported vessels and filed 9 Bills of Entry, which were provisionally assessed due to uncertainty regarding the levy of customs duty on various items on board the vessels. After clarification by the Board, the assessments were finalized in 1996. Subsequently, the matter entered litigation and was resolved by an order in original in 2005, entitling the appellants to refunds of excess duty paid on these bills of entry. The refund amounts were detailed in a table provided in the judgment.

Crediting Refund to Consumer Welfare Fund:
The refund claims were sanctioned but credited to the Consumer Welfare Fund because the appellants failed to demonstrate that they had not transferred the liability to their customers. No representation was made on behalf of the appellants during the proceedings. The Tribunal noted that the duty was paid in 1999 while the assessments were still under dispute, and the final settlement was reached in 2005. The Tribunal applied the decisions of the Hon'ble Gujarat High Court in the case of Hindalco Industries Limited and the Larger Bench of the Tribunal in the case of Hindustan Zinc Limited to determine that the appellant was not required to establish unjust enrichment in this case.

Applicability of Unjust Enrichment Principle:
The Tribunal found that the situation involved the payment of differential duty after the finalization of assessments, which had occurred before a specific date. Relying on the decisions mentioned earlier, the Tribunal concluded that the appellant did not need to prove unjust enrichment in this scenario. Consequently, the appeals filed by the appellants were allowed, providing them with consequential relief.