2014 (9) TMI 325 - HC - Customs

Refund of Countervailing Duty (CVD) - import of against Advance licence - unjust enrichment - appellant contended that in terms of Notification No. 149/95, they were not required to pay countervailing duty on the imported goods against their Advance licence in terms of Section 3 of the Customs Tariff Act and since this duty was incorrectly paid by them by mistake, therefore, they were entitled to the refund thereof. - Held that - While examining the question whether or not burden of duty has been discharged by the assessee, one has to be practical and adopt a realistic approach and not be oblivious as to nature and character of proof which will be available. When the assessee is able to show that the burden of duty has not been passed on, he asserts and submits affidavits and certificate of a chartered accountant along with copy of the balance sheet, indicates and shows sales invoices for pre and post-period and when there is no other negative factor or evidence to the contrary to disbelieve, the contention should be accepted. To deny what was paid and has to be refunded by law to the said person is not fair, just and equitable. - Refund allowed - Decided in favor of assessee.

Issues Involved:
1. Entitlement to Refund of Countervailing Duty (CVD)
2. Compliance with Notification No. 149/95
3. Unjust Enrichment and Section 27 of the Customs Act, 1962
4. Examination of Evidence and Documentation
5. Delay in Adjudication and Multiple Rounds of Litigation

Issue-wise Detailed Analysis:

1. Entitlement to Refund of Countervailing Duty (CVD):
The appellant, a motorcycle manufacturer, imported components for motorcycles and erroneously paid CVD amounting to Rs. 22,34,700/-. The Tribunal initially held that the appellant was entitled to a refund of CVD as per the order dated 3rd February 2000, which stated that the appellant had complied with Notification No. 149/95 and was, therefore, not required to pay CVD on the imported goods. The Tribunal directed that the refund should be paid in accordance with the law. However, the Assistant Commissioner of Customs (Refund) rejected the refund claim on 1st March 2006, stating that the appellant had not met the burden of proof required to substantiate their claim.

2. Compliance with Notification No. 149/95:
The appellant complied with Notification No. 149/95, which mandated that the exemption under the notification would be available on goods imported against an advance license issued on or after 19-9-1995. The appellant's advance license was issued on 23-8-1996, fulfilling the notification's requirements. The Tribunal's order dated 3rd February 2000 confirmed this compliance and directed the refund of CVD.

3. Unjust Enrichment and Section 27 of the Customs Act, 1962:
The Tribunal and the lower authorities focused on the issue of unjust enrichment under Section 27 of the Customs Act, 1962, which requires that no refund claim shall be allowed without meeting the test prescribed by Section 27(1). The authorities below, including the Assistant Commissioner of Customs (Refund) and the Commissioner (Appeals), rejected the refund claim on the grounds that the appellant had not been able to substantiate that the CVD paid was not passed on to customers. The Tribunal upheld this view, stating that there was no evidence to meet the test of unjust enrichment.

4. Examination of Evidence and Documentation:
The appellant submitted various documents, including the original bill of entry, balance sheet, unjust enrichment certificate, DEEC book, and Chartered Accountant certificate, to substantiate their claim. Despite these submissions, the Assistant Commissioner of Customs (Refund) and the Tribunal failed to examine these documents adequately. The High Court noted that the Tribunal did not consider the factual matrix and specific evidence provided by the appellant. The appellant's submissions included detailed explanations and supporting documents indicating that the CVD paid did not affect the sale price of the motorcycles and was not passed on to customers.

5. Delay in Adjudication and Multiple Rounds of Litigation:
The case underwent multiple rounds of litigation, starting with the initial refund application filed on 11th August 1997 and the subsequent rejection on 5th March 1998. The matter was remanded by the Commissioner (Appeals) on 2nd September 1998, and the appellant finally succeeded before the Tribunal on 3rd February 2000. Despite this, the Assistant Commissioner of Customs (Refund) again rejected the refund claim on 1st March 2006. The High Court noted the extraordinary delay and peculiar facts of the case, compelling it to examine the documents on record to ascertain whether the appellant had discharged the burden as per Section 28D of the Act.

Conclusion:
The High Court concluded that the appellant had provided sufficient evidence, including affidavits and certificates from a Chartered Accountant, to prove that the burden of CVD was not passed on to customers. The Court emphasized the need for a practical and realistic approach in examining such claims and criticized the authorities for not adequately considering the evidence provided. The Court directed that the refund amount be paid to the appellant along with interest and costs.

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