2014 (12) TMI 21 - AT - Customs

Denial of refund claim - whether without challenging the assessment order on the Bills of Entry, the appellant is entitled for refund or not - Held that - As per Section 27 (2), the duty borne by the assessee is refundable without challenging the assessment order. In these circumstances, I hold that the appellant are entitled to file refund claim without challenging the assessment order. appellant had produced the balance-sheet which shows that the amount of Anti Dumping Duty paid by them originally is recoverable advance from the customers. Further, they have produced a certificate to the effect that the Anti Dumping Duty has not formed part of the final product. In these circumstances, I hold that the appellant has passed the bar of unjust enrichment. Therefore the appellants are entitled for refund claim - Decided in favour of assessee.

Summary

Issues:
1. Entitlement for refund claim without challenging assessment order on Bills of Entry.
2. Bar of unjust enrichment in refund claim.

Analysis:

Issue 1: Entitlement for refund claim without challenging assessment order on Bills of Entry
The appellant appealed against the denial of refund claim by the Commissioner (Appeals) based on the grounds that the assessment order was not challenged. The appellant imported Glass Epoxy Copper during October 2003 to January 2004 and paid Anti Dumping Duty provisionally as per Notification No. 141/2003, which was later withdrawn. The appellant filed a refund claim for the Anti Dumping Duty paid, which was initially sanctioned but later rejected on appeal by the Revenue. The appellant argued that they are entitled to the refund claim under Rule 21 of the Customs Tariff Rules without challenging the assessment of Bills of Entry. The Tribunal referred to a judgment by the Delhi High Court in Aman Medical Products Ltd case, stating that duty borne by the assessee is refundable without challenging the assessment order. Consequently, the Tribunal held that the appellant was entitled to file a refund claim without challenging the assessment order.

Issue 2: Bar of unjust enrichment in refund claim
The second issue revolved around the bar of unjust enrichment in the refund claim. The appellant contended that they had produced a balance sheet indicating that the Anti Dumping Duty paid was recoverable from customers and provided a Chartered Accountant Certificate certifying that the duty did not form part of the final product's cost of production. The appellant argued that they had discharged the burden of unjust enrichment, which was not considered by the Commissioner (Appeals). On the contrary, the Additional Commissioner argued that the adjudicating authority did not scrutinize the price and sale of the final product, leading to an incorrect finding on unjust enrichment. The Tribunal, after considering the submissions, held that the appellant had indeed passed the bar of unjust enrichment based on the evidence presented. Consequently, the Tribunal rejected the impugned order, allowed the appeal, and granted consequential relief to the appellant.

In conclusion, the Tribunal found in favor of the appellant on both issues, ruling that they were entitled to the refund claim without challenging the assessment order and had sufficiently demonstrated that they had not unjustly enriched themselves.