2016 (4) TMI 881 - AT - Customs

Refund claim - excess custom duty paid - unjust enrichment - non-production of certificate of non-availment of Cenvat credit - Held that - the appellant is not registered with Central Excise department for issuance of Cenvatable invoice therefore question of either availment of Cenvat credit or passing of Cenvat credit does not arise. Appellant have submitted sales invoice wherein it was clear that Cenvat credit was not passed on. In this factual position insistence of the Adjudicating authority for producing Cenvat non-availment certificate, in my view not at all required. As regard other test whether the incidence of refund amount was passed on or otherwise, I find that appellant have submitted C.A. certificate as well as they shown amount of refund as Custom Duty Receivable in their balance sheet. From this evidence, it is clear that appellant has been able to prove that the incidence of excess paid duty for which refund is sought for, has not been passed on to any other person. - Matter remanded back

Summary

Issues:
Refund claim of excess paid custom duty based on unjust enrichment due to lack of Cenvat credit certificate and sale invoices.

Analysis:
The appeal challenged Order-in-Appeal No. 1730/(CRC-i)/2014 upholding Order-in-Original No. 6537/2013 AM (I) rejecting the appellant's refund claim. The issue centered on the rejection of the refund claim due to unjust enrichment, specifically the absence of a Cenvat non-availment certificate and sale invoices. The Adjudication authority emphasized the lack of evidence regarding Cenvat credit and passing on of the duty. The appellant's counsel argued that as the appellant was not registered with the Central Excise department for Cenvatable invoices, the question of Cenvat credit did not arise. The counsel contended that the refund application included invoices, demonstrating that no Cenvat credit was passed on. Additionally, the appellant submitted a C.A. certificate and a balance sheet showing the duty as receivable, indicating non-passing of the duty.

The Revenue representative reiterated the findings of the impugned order, emphasizing the grounds for rejection. After considering both sides and reviewing the records, the Member (J) found that the rejection based on unjust enrichment was unfounded. The appellant's lack of registration for Cenvatable invoices negated the need for a Cenvat non-availment certificate. The refund application and submitted sales invoices clearly showed that no Cenvat credit was passed on. The balance sheet indicated the duty as receivable, supporting the appellant's claim of non-passing of the duty. The Member (J) concluded that the Adjudicating authority's insistence on a Cenvat non-availment certificate was unnecessary. The matter was remanded to the Original Adjudicating authority for verification of the documents, including sales invoices and the balance sheet. The appellant was granted a personal hearing opportunity to furnish the required documents. The Adjudicating authority was directed to issue a de novo adjudication order within two months from the receipt of the remand order, allowing the appeal on the grounds of remand.