2016 (3) TMI 1091 - AT - Customs

Refund of customs duty - Bill of Entry is filed on self assessment basis - they did not claim benefit of notification inadvertently/not being aware of the benefit which was available to them at the time of import. - assessee did not challenge the assessment order before any appeal Forum - unjust enrichment - Held that - The coordinate bench of the Tribunal in Suryalaxmi Cotton Mills Ltd Vs CCE, Nagpur, 2014 (12) TMI 1207 - CESTAT MUMBAI following the judgment laid in Aman Medical Products Ltd 2009 (9) TMI 41 - DELHI HIGH COURT held that if the duty is paid and borne by the assessee, refund is admissible without challenging the Bill of Entry. In the present case, undisputedly, the duty was paid and borne by the appellant. - Refund to be allowed. Unjust enrichment - Held that - the certificate issued by Company s statutory auditor to be accepted as sufficient evidence to establish that the incidence of duty has not been passed on - Further, If the claim for refund is not supported by necessary documents, the original authority ought to have returned the refund claim as defective and ought not to have passed any order on merits. The appellant then should be provided opportunity to rectify the defects. - Refund allowed - Decided in favor of assessee.

Summary

Issues involved:
1. Rejection of refund claim
2. Eligibility for refund without challenging the assessment
3. Doctrine of unjust enrichment

Analysis:

Issue 1: Rejection of refund claim
The appellant imported Sun Flower Cake and paid duty, later realizing the duty exemption. The refund claim was rejected on grounds of failure to challenge the assessment and inability to prove non-passing of duty incidence. The Commissioner (Appeals) upheld the rejection, leading to the present appeal.

Issue 2: Eligibility for refund without challenging the assessment
The Customs Act, 1962 governs refund claims under Section 27. The department argued that a refund claim is not valid without challenging the assessment. However, amendments to the Act introduced self-assessment provisions, allowing refunds even without challenging the Bill of Entry. Previous judgments, like Suryalaxmi Cotton Mills Ltd case, support refund eligibility when duty is paid by the appellant, as in this case.

Issue 3: Doctrine of unjust enrichment
The second reason for denying the refund was unjust enrichment. The appellant provided a certificate from a Chartered Accountant showing the duty amount as receivables in the balance sheet. Despite this evidence, the Commissioner (Appeals) disregarded the certificate, citing lack of supporting documents. However, the Tribunal in previous cases accepted statutory auditor certificates as sufficient proof of non-passing of duty incidence.

In conclusion, the Tribunal found the appellant eligible for a refund, setting aside the impugned order and allowing the appeal with any consequential reliefs. The judgment emphasized the importance of considering evidence provided, especially in cases of refund claims and unjust enrichment.