2014 (11) TMI 528 - AT - Customs

Denial of refund claim - Unjust enrichment - import of seven consignments of CD Pick Up Lense Units - exemption under Notification No. 25/99-CUS. - Since Department denied the exemption, appellant paid basic customs duty @ 25% adv. - Whether the refund claimed is hit by unjust enrichment as per section 27 of Customs Act - Difference of opinion - Majority order - Held that - Though the rate of additional customs duty and SAD remain the same, since the additional customs duty and SAD is calculated on the value which is sum of CIF price plus basic customs duty, increase in the rate of basic customs duty would also result in payment of higher quantum of additional customs duty and also the SAD. The Additional Customs Duty and SAD are cenvatable and it is not disputed that refund claim of ₹ 25,28,755/- out of total claim of ₹ 25,98,820/- represents the additional customs duty and special additional customs duty whose Cenvat Credit has been availed. The appellant, therefore, are eligible only for the refund of the balance amount of ₹ 10,63,065/- as for refund of Additional Customs Duty & SAD of ₹ 25,28,755/- the Cenvat Credit of this amount taken would have to be reversed which has not been reversed. Department does not dispute the cost data about the cost of manufacture of CD Deck Mechanism and average selling price of CD Deck Mechanism during July 03 to Sept. 03 period and Oct. 03 to March 04 period. From the fact that during 2003-04 the Appellant Company made the profit of about ₹ 6 Lakh it cannot be concluded that they had not sold CD Deck Mechanism during Oct. 03 to March 04 period at a loss. Looking to the facts of this case I am of the view that there is no reason to disbelieve the appellant s contention backed by C.A. Certificate and cost data that incidence of customs duty whose refund is being claimed was not passed on by them to the customers - refund claim of only basic customs duty of ₹ 10,63,065/- would be available to the appellant, as the balance amount of ₹ 25,28,755/- represents additional customs duty/SAD whose Cenvat Credit has been taken by the appellant. Refund of ₹ 10,63,065 is allowed to the appellant by holding the same as not hit by bar of unjust enrichment. However, as the appellant has already availed Cenvat credit to the extent of ₹ 25,28,755/- (Rupees Twenty five lakh twenty eight thousand seven hundred and fifty five only), they are not entitled to the cash refund of the same - Decided partly in favour of assessee.

Issues Involved:
1. Eligibility for concessional rate of duty.
2. Entitlement to refund of duty paid under protest.
3. Applicability of the doctrine of unjust enrichment.
4. Validity of Chartered Accountant's certificate as evidence.
5. Impact of sale price on refund eligibility.
6. Legal precedents and their applicability.

Detailed Analysis:

1. Eligibility for Concessional Rate of Duty:
The appellant imported items declared as 'CD' pick-up lens units and parts of CD Deck apparatus under the Customs (Import of goods at concessional rate of duty for manufacture of excisable goods) Rules, 1996, read with Notification No. 29/99-Cus dated 28.2.99. The Revenue contended that the goods were complete CD Deck mechanisms, not parts, and thus not eligible for the concessional rate. The adjudicating authority ruled against the appellant, but the Commissioner (Appeals) overturned this decision, affirming the appellant's eligibility for the notification benefits.

2. Entitlement to Refund of Duty Paid Under Protest:
Following the favorable order from the Commissioner (Appeals), the appellant filed a refund claim for Rs. 35,91,820/- paid under protest. The Tribunal, in its final order, upheld the Commissioner (Appeals)'s decision, confirming the appellant's entitlement to the duty exemption. The duty was paid under protest, as evidenced by the original clearance documents.

3. Applicability of the Doctrine of Unjust Enrichment:
The core issue was whether the appellant had passed on the burden of the extra duty to their customers, invoking the doctrine of unjust enrichment. The lower authorities rejected the refund claim on these grounds. The appellant argued that the average sales price of their product decreased during the period when higher duty was paid, indicating that the extra duty was not passed on to customers. They provided a Chartered Accountant's certificate and detailed cost analysis to support their claim.

4. Validity of Chartered Accountant's Certificate as Evidence:
The Chartered Accountant's certificate indicated that the higher duty paid was not recovered from customers, as the selling price of the final product was lower than the manufacturing cost. The lower authorities did not provide valid reasons to reject this certificate. The Tribunal noted that such certificates, based on regular business records, should be given due credence unless effectively rebutted by the Revenue with positive evidence.

5. Impact of Sale Price on Refund Eligibility:
The appellant demonstrated that the sale price of the final product decreased during the period of higher duty payment, supporting their claim that the higher duty was not passed on to customers. The Tribunal found this argument compelling, noting that the Revenue did not dispute the sale price data. The Tribunal also referenced legal precedents where similar reasoning was accepted.

6. Legal Precedents and Their Applicability:
The Tribunal cited several precedents, including:
- Infar India Ltd. vs. Commissioner of Customs, New Delhi: Certificates from Chartered Accountants were accepted as evidence that the duty burden was not passed on to customers.
- CCE vs. Manjunath Food and Packaging P. Ltd. and Living Media India Ltd.: Held that duty paid under protest negates the application of unjust enrichment.
- Collector of Central Excise vs. Metro Tyres Ltd.: Concluded that unchanged or reduced sale prices post-duty increase indicate non-passing of duty burden to customers.

Separate Judgments:
- Member (Judicial): Concluded that the refund claim was not hit by unjust enrichment, as the appellant successfully demonstrated that the higher duty was not passed on to customers.
- Member (Technical): Disagreed, emphasizing the need for substantial evidence beyond the Chartered Accountant's certificate and arguing that the appellant failed to prove non-passing of the duty burden.

Majority Decision:
Based on the majority decision, the refund of Rs. 10,63,065/- was allowed, holding that it was not hit by the bar of unjust enrichment. However, the appellant was not entitled to a cash refund for the amount of Rs. 25,28,755/- for which Cenvat credit had already been availed.

Conclusion:
The Tribunal's final order allowed the refund claim of Rs. 10,63,065/- while denying the cash refund for the Cenvat credited amount, resolving the issue in favor of the appellant based on the evidence and legal precedents presented.

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