2017 (11) TMI 360 - AT - Customs

Unjust enrichment - refund of excess duty paid - price variation - the Govt. had enhanced the tariff value vide N/N. 36/2001 dated 03.08.2001. Therefore, differential duty was demanded - The Hon. High Court of Madras in the case of M/s. Foods, Fats and Fertilisers Ltd. Versus The Deputy Commissioner of Customs 2015 (8) TMI 782 - MADRAS HIGH COURT held that as long as the impugned Notification has been notified in the Official Gazette, to the public, only on 06.08.2001, the duty becomes payable only from that date and as such the excess duty collected is refundable. Held that - The representative for the appellants is vociferous in his contention that they have paid the differential duty only after sale of all the goods was completed. However, on their own admission, all these documents have not been produced before the sanctioning authority - Accordingly, the appellants should be given another opportunity before the original authority to prove their bonafides and to establish that they have indeed completed the sale of goods before they paid up the differential duty to their buyers - appeal allowed by way of remand.

Summary

Issues involved:
Claim of refund of duty paid under protest, unjust enrichment, sufficiency of documents to prove non-passing of duty incidence, treatment of duty amount in books of accounts, denovo proceedings for further evidence submission.

Detailed Analysis:

1. Claim of refund of duty paid under protest:
The case involves a claim for the refund of duty amounting to ?1,09,11,275 paid under protest by the appellant for the clearance of RBD Palm Olein from a bonded warehouse. The duty was initially paid based on the tariff value before the government enhanced it through a notification. The High Court held that the excess duty collected is refundable as the notification was only made public after the duty was paid. The original authority sanctioned the refund but cited unjust enrichment as a reason for crediting the amount to the Consumer Welfare Fund. The Commissioner (Appeals) upheld this view, leading to the appeal before the tribunal.

2. Sufficiency of documents to prove non-passing of duty incidence:
The appellant claimed that they sold the goods before paying the differential duty, supported by a Chartered Accountant's Certificate. However, both authorities did not accept this claim, as they did not submit sufficient documents like invoices to prove that the duty incidence was not passed on. The Commissioner (Appeals) noted the absence of proof in the order, and the treatment of the duty amount in the profit and loss account was seen as an indication of passing on the duty incidence.

3. Denovo proceedings for further evidence submission:
The tribunal found that while the eligibility of the refund claim was undisputed, the issue of unjust enrichment required further evidence. The appellant contended that they had provided all invoices related to the sale of goods to prove non-passing of duty incidence. The tribunal emphasized the need to establish whether the goods were sold before paying the duty and directed the appellant to prove this before the original authority. Denovo proceedings were ordered to be completed within three months to allow for additional evidence submission.

In conclusion, the tribunal allowed the appeal by way of remand, emphasizing the importance of proving non-passing of duty incidence through proper documentation and directing denovo proceedings for a fair assessment of the refund claim.