2004 (8) TMI 176 - AT - Customs

Refund - Unjust enrichment - Discharge of burden - Evidence - HELD THAT - I am of the considered opinion that the certificate by the Chartered Accountant without any supporting documents is not sufficient to show that the burden of duty has not been passed on to any other person and thus, the presumption as contained in Section 28D of the Act ibid that incidence of duty has been passed on to the buyer is fully proved and doctrine of unjust enrichment is therefore applicable in their case. The appellants therefore, have not discharged the burden. The lower authorities have rightly ordered the credit of such refund granted, to the Consumer Welfare Fund. I am also in agreement with the plea taken by the learned JDR that the facts in the judgment rendered in CEGAT in the matter of Hindustan Fertilizer Corporation v. CC 1990 (9) TMI 112 - CEGAT, CALCUTTA-LB and the facts in the judgment of the Hon'ble Bombay High Court in the case of Keshari Steels v. CC 1996 (9) TMI 154 - HIGH COURT OF JUDICATURE AT BOMBAY are clearly distinguished to the facts of this case as in those cases, the refund claims were rejected on the ground that the refund claim was filed beyond the period of six months. It was therefore, held that the time-bar as provided u/s 27 of the Act would not be applicable in the case of such arithmetical or clerical errors. Both the lower authorities have suo motu admitted the refund claim and also allowed the refund claim as admissible but credited the refund amount to the Consumer Welfare Fund as the doctrine of unjust enrichment was found applicable in their case and the presumption that incidence of duty has been passed on to the buyers under Section 28D was found to be against them as they did not submit documentary proof to the original authority to satisfy him or to the lower appellate authority to satisfy him that the burden of incidence of duty has not been passed on to the buyer. The plea of the learned Advocate for the appellants cannot therefore, be countenanced. Thus, I do not find any infirmity in the order passed by both the lower authorises and reject the appeal. It is ordered accordingly.

Summary

Issues involved: Appeal against order upholding refund sanction under Section 27 of Customs Act, 1962 based on unjust enrichment doctrine.

Summary:
1. The appeal challenged the order upholding the refund sanction under Section 27 of the Customs Act, 1962, due to a wrong declaration of currency. The lower authorities found the refund claim admissible but credited the amount to the Consumer Welfare Fund based on the doctrine of unjust enrichment.

2. The appellants failed to provide sufficient evidence to prove that the burden of duty had not been passed on to any other person, as required by Sections 27 and 28C of the Customs Act, 1962. The Chartered Accountant certificate submitted was deemed insufficient without supporting documents like sale invoices.

3. The appellants argued that their case fell under Sections 149 and 154 of the Customs Act, 1962, and that the refund should have been granted suo motu due to clerical/arithmetical error. However, the authorities maintained that the doctrine of unjust enrichment applied, as the burden of proof had not been met.

4. The Revenue contended that the refund was sanctioned based on clerical/arithmetical error under Section 154, but the burden of proof regarding unjust enrichment was not adequately addressed by the appellants.

5. The Tribunal upheld the lower authorities' decision, emphasizing the necessity of providing supporting documents to demonstrate that the burden of duty had not been passed on. The appeal was rejected based on the doctrine of unjust enrichment and lack of sufficient evidence to the contrary.

6. The Tribunal found no error in the lower authorities' decision to credit the refund amount to the Consumer Welfare Fund, as the burden of proof regarding unjust enrichment was not satisfactorily discharged by the appellants. The appeal was dismissed accordingly.