2007 (6) TMI 58 - AT - Customs

Refund - Alleged that appellant is not entitle for refund claim on the ground that they are not able to produce sale invoice recognize under Section 28C of C.A. 1962 - Held that allegation was correct and refund credited to Consumer Welfare Fund

Summary

Issues:
Refund claim rejection based on unjust enrichment - Non-submission of sale invoice as evidence - Adverse inference drawn by Commissioner (Appeals) - Primacy of sale invoice under Section 28C of the Customs Act - Substantial corroborative evidence argument by the appellants.

Analysis:
The appeal was filed against the rejection of a refund claim by the assessee due to the lack of evidence against unjust enrichment. The original authority had sanctioned the refund but credited it to the Consumer Welfare Fund under Section 27 of the Customs Act. The party then appealed to the Commissioner (Appeals) but did not succeed, leading to the present appeal before the Tribunal.

Despite the absence of representation by the appellants, the Tribunal proceeded to dispose of the appeal after examining the records and hearing the ld. SDR. It was noted that the appellants failed to produce the sale invoice before the lower authorities to prove that the duty paid had not been passed on to the buyer. Instead, they presented their books of account and a certificate from a Chartered Accountant. The Commissioner (Appeals) emphasized the significance of the sale invoice as per Section 28C of the Customs Act and drew an adverse inference due to its absence, resulting in the refund claim being barred by unjust enrichment.

The appellants argued that the sale invoice was not essential to determine whether the duty had been passed on, contending that the books of account and the Chartered Accountant's certificate constituted substantial corroborative evidence. However, the Tribunal rejected this argument, emphasizing the importance of the sale invoice specified under Section 28C, which obligates the seller to indicate the duty amount paid on the goods in all relevant documents. The absence of the sale invoice led to the failure to rebut the presumption under Section 28D that the duty incidence had been passed on to the buyer.

Ultimately, the Tribunal upheld the impugned order, dismissing the appeal due to the appellants' failure to provide the required sale invoice as primary evidence to establish that the duty had not been passed on, as mandated by Section 28C of the Customs Act.