2012 (9) TMI 207 - AT - Customs

Refund claim - unjust enrichment - adjudicating authority sanctioned the refund amounts but credited it to the consumer welfare fund Held that - Bar of unjust enrichment is applicable to the facts of this case when the appellants have filed a refund claim of SAD paid by them at the time of import of goods which were cleared by them on payment of VAT. As the appellants have obtained a certificate from Chartered Accountant confirming that the duty liability of SAD has not been passed on the buyers by the appellants, the same is sufficient as per the Board s Circular No. 18/10-Cus., dated 8-7-2010, to discharge the liability of bar of unjust enrichment and the bar of unjust enrichment is not applicable to the case of the appellants - appellant is entitled for refund

Summary

Issues:
1. Whether the refund claim attracts the provisions of unjust enrichment.
2. Interpretation of Notification No. 102/2007 regarding exemption on Special Additional Duty (SAD).
3. Validity of Chartered Accountant's certificate as evidence to rebut the presumption of passing on duty incidence.
4. Applicability of Circular No. 18/2010-Cus. in cases of refund claims.
5. Examination of the doctrine of unjust enrichment in the context of the case.

Analysis:
1. The case involved a dispute regarding the refund claim of additional duty of customs (4% SAD) filed by M/s. Gujarat Boron Derivatives. The adjudicating authority sanctioned the refund but credited it to the consumer welfare fund, leading to an appeal to the Commissioner (Appeals) against the order. The central issue was whether the refund claim would attract the provisions of unjust enrichment.

2. The Commissioner (Appeals) upheld the order of the adjudicating authority, emphasizing that the Chartered Accountant's certificates provided by the appellant lacked supporting documents, which are essential to rebut the presumption of passing on the duty incidence. Reference was made to a previous case to establish the relevance of supporting documents in such matters.

3. The appellant contended that they fulfilled all conditions under Notification No. 102/07, providing for exemption on SAD, and submitted sales invoices showing no SAD charges to buyers. They argued that the principles of unjust enrichment or double benefit did not apply in their case as they did not pass on the duty incidence to buyers, supported by the Chartered Accountant's certificate.

4. The judgment highlighted the importance of complying with Circular No. 18/2010-Cus., which prescribed the procedure for refund under the notification. It clarified that the doctrine of unjust enrichment needed to be examined before sanctioning a refund and allowed importers to submit a certificate from the statutory auditor/Chartered Accountant to prove non-passing of duty burden.

5. The Tribunal's decision favored the appellant, citing a similar case where the Chartered Accountant's certificate confirming non-passing of duty liability was deemed sufficient to discharge the unjust enrichment bar. Consequently, the provisions of unjust enrichment were deemed inapplicable in the case, and the appellant was entitled to the refund, leading to the rejection of the Commissioner (Appeals) order and allowing the appeal with consequential relief.