2023 (12) TMI 448 - AT - Customs

Refund of Customs Duty paid under protest - classification of imported goods - fibre optic cable (DWSM OPGW) - refund claim of the respondent denied on the ground that the claimant has failed to satisfy the test of unjust enrichment - HELD THAT - It is a fact on record that the assessee could only indicate the amount shown as receivables, as informed to them by the Department, the respondent has also indicated the same in the accounts as receivables, once they were informed of the test results and for which reasons they had paid the duty at the first instance only under protest. Once certain about the leviability of the imported goods at nil rate of duty, as informed to them by the Department, the respondent has also indicated the same in their books of account. Since the refund amount was contingent upon the outcome of the test report, it is very obvious that the said amount could not be reflected as receivables then and there. It is also noted that in case of M/S. SAVITA OIL TECHNOLOGIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, BELAPUR 2016 (12) TMI 1222 - CESTAT MUMBAI wherein the co- ordinate bench of this Tribunal had held that when the amount actually paid does not lead to obvious conclusion that the burden of duty has been passed on, the date of recording of the said amount in the Books of Accounts is irrelevant. Even otherwise, mere accounting is not conclusive proof that the burden of duty has been passed on and has to be empirically justified. There is no infirmity in the order-in-appeal passed by the ld.Commissioner (Appeals). Accordingly, the appeal filed by the Department is without merit - Appeal dismissed.

Summary

Issues involved:
The issues involved in this case include classification of imported goods, provisional assessment, refund claims, unjust enrichment, and the burden of proof regarding passing on the customs duty to customers.

Classification of goods and refund claims:
The case involved an appeal by the Revenue against the order-in-appeal allowing refund claims filed by the importer for the classification of fibre optic cable. The importer had paid duty under protest, later testing revealed a different classification attracting nil rate of Basic Customs Duty. The importer filed refund claims supported by Chartered Accountant's and Statutory Auditor's Certificates indicating the amount due as refund of Customs duty.

Unjust enrichment and burden of proof:
The Adjudicating Authority rejected the refund claim citing failure to satisfy the test of unjust enrichment and importer's lack of challenge to assessment orders. The Commissioner (Appeals) upheld the importer's contention based on evidence including invoices, price lists, and auditor's certificate showing that the burden of duty was not passed on to customers. The Tribunal referred to the burden of proof on the importer, as per the decision in Commissioner of Customs, New Delhi Vs. Organan (India) Limited, and held that the importer was eligible for the refund of customs duty.

Legal precedents and conclusions:
The Tribunal considered legal precedents such as Savita Oil Technologies Limited Vs. Commissioner of Central Excise and Commissioner of Central Excise, Pune I Vs. Sandvik Asia Limited to support its decision. It emphasized that the burden of proof lies on the Department to show unjust enrichment, and mere accounting entries are not conclusive proof. The Tribunal upheld the order-in-appeal, dismissing the Revenue's appeal as without merit based on established legal principles and evidence presented by the importer.