2013 (9) TMI 701 - AT - Customs

Refund of duty assessee filed the application for refund of excess duty paid on import of refractory bricks - Held that - Principles of unjust enrichment would apply in the case of refractory bricks which were consumables and which are captively consumed and inasmuch as the appellant had not led any sufficient and satisfactory evidence to prove that the burden of duty incidence has not been passed on, they are not eligible for the refund - Court followed the judgement of SRF Ltd., Vs. CC, Chennai (2005 (5) TMI 91 - CESTAT, NEW DELHI) Chartered Accountant s certificate cannot be a conclusive proof of the fact that duty incidence had not been passed on even though it could be one of the evidences with respect to such a claim appeal decided against assessee.

Summary

Issues:
- Appeal against rejection of refund claim on excess duty paid on import of refractory bricks
- Applicability of unjust enrichment principle on goods captively consumed

Analysis:

Issue 1: Appeal against rejection of refund claim on excess duty paid on import of refractory bricks
The appellant, M/s. Bharat Electronics Ltd., filed a refund claim for excess duty paid on a consignment of refractory bricks. The claim was initially rejected by the assessing officer but later allowed by an order-in-appeal dated 24/07/1998. However, the refund amount was credited to the Consumer Welfare Fund under Section 27(2) of the Customs Act, 1962, as the appellant failed to prove that the duty burden was not passed on to others. The appellant contended that since the refractory bricks were captively consumed in manufacturing processes and not sold, they were eligible for the refund. The appellant cited previous tribunal decisions to support their argument. The respondent argued that the unjust enrichment principle applies even to goods captively consumed, relying on various court decisions. The tribunal noted that the appellant did not provide sufficient evidence to show that the duty burden was not passed on, except for a Chartered Accountant's certificate. The tribunal referred to the principle of unjust enrichment in the case of Solar Pesticide Pvt. Ltd. and held that the burden of proof lies on the appellant to demonstrate non-passing of duty burden, which was not adequately done in this case. Therefore, the tribunal dismissed the appeal.

Issue 2: Applicability of unjust enrichment principle on goods captively consumed
The tribunal examined whether the principle of unjust enrichment applies to goods captively consumed. Citing the decision in Solar Pesticide Pvt. Ltd., the tribunal emphasized that even in cases of captive consumption, the burden of proving non-passing of duty to others rests on the importer. The tribunal also referred to other court decisions and a Larger Bench decision to support the application of the unjust enrichment principle to imported capital goods captively consumed in manufacturing processes. The tribunal highlighted that a Chartered Accountant's certificate alone is not sufficient to prove non-passing of duty burden and that invoices issued to buyers must be considered. Since the appellant failed to provide substantial evidence beyond the certificate, the tribunal concluded that the unjust enrichment principle applies to goods like refractory bricks, leading to the dismissal of the appeal.

In conclusion, the tribunal upheld the decision to credit the refund amount to the Consumer Welfare Fund due to the appellant's failure to sufficiently demonstrate that the duty burden was not passed on. The judgment reaffirmed the application of the unjust enrichment principle to goods, even when captively consumed, emphasizing the importance of concrete evidence to support refund claims in such cases.