2009 (5) TMI 477 - AT - Customs

Refund- unjust enrichment- The appellants filed a refund claim against the excess duty paid where the Notification benefit was denied. The same was rejected by the Adjudicating Authority. Against such an order, appellant moved in appeal before the Commissioner (A), who allowed the appeal by remanding the matter back to the Adjudicating Authority to reconsider the claim to the extent of quantity already consumed, after verifying all the aspects. The Adjudicating Authority passed an order sanctioning the refund claim, but credited the same to the Consumer Welfare Fund. Held that- burden of duty was passed on and importer was not entitled to refund. In the absence of any evidence to show that the amount has not been recovered from the customs, we find that the impugned order passed by the Commissioner (Appeals) is correct.

Summary

Issues: Refund claim against excess duty paid, denial of Notification benefit, rejection of refund claim by Adjudicating Authority, remand by Commissioner (A), credit of refund to Consumer Welfare Fund, appeal before Tribunal, issue of refund of duty, evidence of passing on refund amount to customers.

The case involved an appeal against Order-in-Appeal No. 704/2004, where the Adjudicating Authority rejected a refund claim for excess duty paid after denying Notification benefit. The Commissioner (A) remanded the matter for reconsideration, leading to the Adjudicating Authority sanctioning the refund but crediting it to the Consumer Welfare Fund. Subsequently, the Commissioner (A) upheld the original order, prompting the appellant to approach the Tribunal. The main issue revolved around the refund of duty, with the appellant arguing that the prices of imported goods remained unchanged before and after importation, supported by sales invoices and a Chartered Accountant's certificate. The department contended that no evidence was provided to show that the refund amount was not passed on to customers.

Upon reviewing the submissions and records, the Tribunal noted that the appellant failed to provide concrete evidence to support their claim of price consistency pre and post importation. The Commissioner (A) had highlighted the absence of pre-clearance sales invoices and the Chartered Accountant's certificate not indicating the disputed amount as 'receivable from customs.' The Tribunal observed that the appellant did not present any new evidence during the proceedings. Consequently, as there was no proof that the duty amount was not recovered from customs, the Tribunal upheld the Commissioner (A)'s decision, deeming the appeal meritless and rejecting it.

In conclusion, the Tribunal found that the appellant's inability to substantiate their claim with concrete evidence regarding price consistency and passing on of the refund amount led to the dismissal of the appeal. The decision emphasized the importance of providing documentary proof to establish the non-passing on of duty incidence to uphold refund claims in such cases.