1991 (10) TMI 42 - HC - Customs

Summary

Issues Involved:
1. Recovery of countervailing duty (Additional Customs Duty) on imported copper scrap.
2. Compliance with exemption notifications and procedural requirements.
3. Rejection of refund applications.
4. Application of the Central Excise and Customs Laws (Amendment) Act, 1991.
5. Doctrine of unjust enrichment.
6. Claim for interest on refund.

Summary:

1. Recovery of Countervailing Duty:
The dispute centers on the recovery of countervailing duty (Additional Customs Duty) on copper scrap imported by the petitioners for manufacturing Copper Oxychloride. The relevant heading for this duty is Heading 7404.00 under the Central Excise Tariff from 1st March 1986, previously under Tariff item 26A.

2. Compliance with Exemption Notifications:
The petitioners complied with the first condition of Notification No. 35/81-C.E., dated 1-3-1981, proving the copper scrap was used for manufacturing chemicals. However, they could not comply with the second condition requiring adherence to Chapter X of the Central Excise Rules, 1944, as they were importers, not manufacturers of copper scrap in India. This procedural requirement was deemed impossible for importers to fulfill.

3. Rejection of Refund Applications:
The petitioners' refund applications for the additional duty of Customs were rejected. The petitioners argued that the exemption notifications provided complete exemption from excise duty for copper scrap used in chemical manufacturing, and thus, additional Customs duty should not be levied. The court found merit in this argument, noting that procedural requirements should not deprive importers of exemption benefits.

4. Application of the Central Excise and Customs Laws (Amendment) Act, 1991:
The respondents argued that the petitioners' refund claims must be considered under the amended Section 27 of the Customs Act, 1962, which requires proof that the duty incidence was not passed on to any other person. The court examined the amended provisions, including Sections 27(2), 28C, and 28D, which generally direct refunds to the Consumer Welfare Fund unless the importer proves they did not pass on the duty burden.

5. Doctrine of Unjust Enrichment:
The court held that the doctrine of unjust enrichment does not apply when imported goods are consumed or used in manufacturing other products. The petitioners used the copper scrap in manufacturing Copper Oxychloride and did not sell the scrap, thus not passing on the duty burden. Therefore, they are entitled to a refund under proviso (a) to Section 27(2) of the amended Customs Act.

6. Claim for Interest on Refund:
The petitioners' claim for interest on the refund was rejected. The court noted that the petition was filed based on the discovery of a mistake of law after learning about the Central Board of Excise and Customs' letter dated 27-7-1987, and thus, interest was not warranted.

Conclusion:
The court ruled in favor of the petitioners, directing the respondents to grant the refund applications and pay the amounts after verifying the claims, giving the benefit of proviso (a) to Section 27(2) of the amended Customs Act. The rule was made absolute with no order as to costs.