2020 (3) TMI 1158 - AT - Customs

Refund of SAD - N/N. 102/2007-Cus dated 14.09.2007 - rejection on the ground of unjust enrichment - CBEC Circular No.6/2008-Cus dated 28.04.2008 and Circular No.18/2010-Cus dated 08.07.2010 - HELD THAT - As per the Circular dated 28.04.2008, a certificate issued by the statutory auditor who certifies the annual accounts of the importer, that the burden of 4% SED has not been passed on by the importer to the buyer was sufficient for satisfying the principals of unjust-enrichment. Such requirement was fulfilled by the appellant and therefore the present ground are in violation of circular No.6/2008-Cus. It is repeatedly held by the Hon ble Supreme Court and other Judicial Authorities that CBEC circulars are binding on the departmental offices, thus inspite of clear instructions revenue has preferred this appeal in violation of said instruction in circular dated 28.04.2008 and by doing so revenue has wasted time of this court. Application of Revenue dismissed.

Summary

Issues:
1. Refund of SAD under Notification No.102/2007-Cus dated 14.09.2007.
2. Unjust enrichment in the refund case.

Analysis:
1. The appeal was filed concerning the refund of SAD under Notification No.102/2007-Cus dated 14.09.2007. The Authorized Representative for the revenue argued that the issue was related to the refund policy not covering periods before 04.04.2018 and after 25.05.2018. Upon noting the absence of the respondent and reviewing the case record, the judge decided to recall the Final Order to examine the appeal on merit, considering it was filed on 31 October 2018.

2. The revenue appealed against the Order-in-Appeal dated 02.07.2018, arguing that the refund case was affected by unjust enrichment. The Commissioner (Appeals) had addressed the unjust enrichment issue in the impugned Order-in-Appeal, citing Circular No.6/2008-Cus dated 28.04.2008 and Circular No.18/2010-Cus dated 08.07.2010 issued by CBEC. The Circular from 2008 specified that a certificate from the statutory auditor confirming that the burden of 4% SED was not transferred to the buyer was sufficient to establish unjust enrichment. The appellant met this requirement, satisfying the principles outlined in the Circular. Despite the binding nature of CBEC circulars on departmental offices, the revenue proceeded with the appeal, contrary to the Circular's instructions. The judge noted that the revenue's actions were in violation of the Circular, resulting in a waste of court time. Consequently, the appeal by revenue was dismissed after allowing the Rectification of Mistake Application.