2013 (5) TMI 250 - AT - Customs

Demand of erroneous refund - Held that - Since the impugned order is in consequence of an order which was passed by Commissioner (Appeals) in setting aside the impugned order which granted SAD to the appellant herein and that the said order has been set aside by the Tribunal on 15.01.2013, the entire issue in this case has attained finality in the hands of the Tribunal. Thus impugned order, which has been passed consequent to the demand notice issued to the appellant is liable to be set-aside.

Summary

Issues:
1. Refund claim of Special Additional Duty (SAD) of Customs.
2. Doctrine of unjust enrichment.
3. Appeal against the order in original.
4. Burden of 4% SAD passed on to buyers.
5. Recovery of erroneous refund under Customs Act, 1962.
6. Finality of the issue in the hands of the Tribunal.

Analysis:
The appeal before the Appellate Tribunal CESTAT AHMEDABAD involved a refund claim of Special Additional Duty (SAD) of Customs by the appellant on imported goods. The appellant filed a refund claim under exemption Notification No. 102/2007-Cus, which was sanctioned and paid to the importer. However, the Commissioner (Appeals) held that the burden of 4% SAD was passed on to the buyers of the goods, invoking the doctrine of unjust enrichment as the appellant failed to rebut the presumption. Consequently, the Commissioner (Appeals) set aside the original order and allowed the appeal filed by the department.

In response to the Commissioner (Appeals) decision, the lower authority confirmed the demand for erroneous refund along with interest to be recovered from the appellant under the provisions of Section 28(2) read with Section 28AB of the Customs Act, 1962. The appellant, aggrieved by this order, appealed before the first appellate authority, who upheld the original order. Notably, the appellant had another appeal before the Tribunal, which was set aside in an earlier matter, but the Tribunal allowed the appeal with consequential relief.

The Tribunal, in this judgment, highlighted that the issue had attained finality in their hands due to a previous decision on a related matter. Since the original order granting SAD to the appellant had been set aside by the Tribunal in a previous ruling, the Tribunal found that the impugned order, which was passed consequent to the demand notice issued to the appellant, was liable to be set aside. Consequently, the Tribunal set aside the impugned order and allowed the appeal in favor of the appellant.

In conclusion, the Tribunal's decision was based on the finality of the issue in their hands, as the previous ruling had set aside the order granting SAD to the appellant. The judgment emphasized the importance of addressing the doctrine of unjust enrichment and the burden of proving that the duty was not passed on to the buyers. The appellant succeeded in having the impugned order set aside, resulting in the appeal being allowed in their favor.