2009 (1) TMI 247 - AT - Customs

Demand and Recovery of erroneous refund - The excess paid amounts of duty were refunded by the Assistant Commissioner (Refunds) after examining whether unjust enrichment was involved in granting the refunds. He went by the certificates issued by Chartered Accountants which had stated that the amounts involved had been accounted in the Balance Sheets of the company as Duty receivable from Customs held that - Section 28 of the Customs Act provides for recovery of duty erroneously refunded. In the Circular No. 423/56/98-CX, dated 22-9-1998 issued by the CBEC, it was clarified that an order passed under Section 35E(2) does not automatically result in the recovery of the refund - the demands are not sustainable in law as the same were ordered without issuing Show Cause Notice under Section 28 of the Customs Act as required order of recovery of refund granted earlier set aside.

Summary

Issues:
- Demand of erroneously refunded amounts of excess paid duty of customs
- Proof of passing on excess duty paid to customers
- Requirement of issuing Show Cause Notice under Section 28 of the Customs Act

Analysis:

1. Demand of erroneously refunded amounts: The case involved appeals filed by two companies against the demand of erroneously refunded amounts of excess paid duty of customs. The impugned order affirmed the demand of Rs. 3,46,405/- and Rs. 2,30,150/- from the respective companies. The companies had imported wooden match splints and paid countervailing duty, unaware that the goods were exempt from CVD. They later applied for and received cash refunds of the excess paid CVD. The Commissioner (Appeals) found that the companies had not proven that the excess duty paid had not been passed on to their customers.

2. Proof of passing on excess duty paid: The companies argued that they had not passed on the excess duty paid to their customers, citing judicial authorities and a circular by CBEC in support of their claim. The Assistant Commissioner had refunded the excess duty after verifying that the amounts were accounted for as "Duty receivable from Customs" in the companies' balance sheets. The Tribunal found that the companies had not passed on the excess duty to their customers, as evidenced by the certificates from Chartered Accountants. The Tribunal emphasized the importance of proving unjust enrichment before demanding refunded amounts.

3. Requirement of issuing Show Cause Notice: The Tribunal examined the legal requirement of issuing a Show Cause Notice under Section 28 of the Customs Act for the recovery of duty erroneously refunded. It was noted that the circular by CBEC clarified the process, stating that a Show Cause Notice must be issued within 6 months from the date of actual refund. In this case, no Show Cause Notices were issued despite review proceedings and appeals. The Tribunal referred to previous judgments to highlight the necessity of following due process, including issuing a Show Cause Notice, before demanding erroneously refunded amounts. The Tribunal concluded that the demands were not sustainable as they were ordered without issuing the required Show Cause Notice.

In conclusion, the Tribunal set aside the impugned order and allowed the appeals, emphasizing the importance of following legal procedures, providing evidence of unjust enrichment, and issuing necessary notices before demanding erroneously refunded amounts of duty.