2008 (2) TMI 95 - AT - Customs

Duty paid on 9 packages but found that only 8 packages were received - one package was short shipped reassessment of 8 packages - Refund claim filed for duty excess paid - it cannot be denied that the amount pertains to the duty paid for the goods that did not exist at the relevant time- Since there cannot be a buyer for the non-existent goods it is normal logic that the duty could also not have been passed on to a non-existent buyer refund not deniable on ground of unjust enrichment

Summary

Issues:
Refund claim due to short shipment of goods, unjust enrichment, applicability of case laws on unjust enrichment, maintainability of appeal by Revenue.

Analysis:
The case involves a refund claim by the respondents due to a short shipment of goods resulting in excess payment of duty. The respondents requested re-assessment of the Bill of Entry, leading to a refund claim of Rs. 1,11,161. The Asst. Commissioner initially credited the refund to the Consumer Welfare Fund, but the Commissioner (Appeals) granted the consequential relief, prompting the Revenue to appeal.

The Tribunal examined the evidence provided by the respondents, including a certificate from a Chartered Accountant, Profit and Loss Account, and balance sheets for the relevant years. The certificate confirmed that the amount claimed as a refund was included in the balance sheet under "Customs Claim receivable," demonstrating that the duty incidence had not been passed on to any other party. This evidence satisfied the requirement of unjust enrichment.

Various case laws were cited to support the position that the bar of unjust enrichment does not apply when the amount is shown as receivable in the balance sheet. The Tribunal also referenced a case where duty was paid for goods that never arrived, emphasizing that in such cases, the duty could not have been passed on as there were no goods to sell or use.

The Revenue relied on a Supreme Court judgment regarding unjust enrichment in cases of captive consumption. However, the Tribunal found that the respondents had effectively proven that the duty incidence had not been passed on, as required by the guidelines. The Tribunal concluded that the appeal lacked substance, and therefore, dismissed the Revenue's appeal, deeming it not maintainable.

In summary, the Tribunal upheld the refund claim of the respondents, emphasizing that the evidence provided demonstrated the absence of unjust enrichment. The decision was supported by relevant case laws and the specific circumstances of the case, leading to the dismissal of the Revenue's appeal.