2017 (8) TMI 429 - AT - Customs

Refund claim - Cess - unjust enrichment - Held that - issue is no more res integra and is squarely covered by the decision in the case of ASIA PACIFIC COMMODITIES LTD. Versus ASSISTANT COMMR. OF CUS., KAKINADA-I 2012 (11) TMI 919 - ANDHRA PRADESH HIGH COURT , where the cess was levied after the same was abolished. The amount realized from the foreign buyer was only FOB value. It was held by the Hon ble Andhra Pradesh High Court that all duties, cess etc are to the sellers account and also as the amount realized as per the Banker s certificate was only FOB value, therefore there is no unjust enrichment and the cess had to be refunded - the refund of cess is not hit by unjust enrichment and the appellants are entitled for the refund - appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund rejection based on unjust enrichment.

Analysis:
The judgment involves four appeals filed by two appellants against two impugned orders rejecting the refund on the grounds of unjust enrichment. The Commissioner (Appeals) had rejected the refund, leading to the appeals. The appellant, engaged in seafood export, had exported consignments after the abolition of AP cess, but the cess was still demanded and paid under protest. The refund applications were filed within the limitation period, but were rejected by the lower authority. The appellant contended that the impugned orders were unsustainable as they did not follow binding judicial precedent. The appellant cited the Cess Laws (Abolition) Act, 2006, and argued that the Revenue collected AP cess illegally even after its abolition. The appellant relied on the decision of the Hon'ble Andhra Pradesh High Court in a similar case to support the refund claim.

The appellant argued that the High Court's decision and a Tribunal's ruling supported their claim that the refund of cess was not barred by the doctrine of unjust enrichment. The appellant emphasized that the FOB value did not include the cess, as per the sale contract and the invoice value. The appellant also challenged the Commissioner (Appeals)'s objection regarding the authority of the CHA to file the refund, asserting that they had indeed authorized the CHA, and the objection was baseless. The Tribunal, following the precedent set by the High Court and the Tribunal's decision, held that the refund of cess was not hit by unjust enrichment, and thus allowed all the appeals of the appellants with consequential relief, if any. The operative portion of the order was pronounced in open court on 12/07/2017.