2016 (3) TMI 190 - AT - Customs

Rejection of refund claim of duty of customs - Bar of Unjust Enrichment - passing of CVD as Cenvat Credit - Held that If the said amount pertained to the Bill of Entry in dispute then it should have appear as amount recoverable in the Balance-sheet of 2005-06 and it should have been shown as amount recoverable as on 31.3.2006. Furthermore, a perusal of the invoice produced by the appellant shows that the appellant has indeed passed on the burden of duty to the buyers. The appellant importer is also a registered dealer, registered with Central Excise. The invoice being issued by him are under the Central Excise Rules, the invoice clearly show the amount of duty is being passed on. The invoices are required to show in the format prescribed under the law in respect of each consignment the amount of duty passed on. In fact, the appellant being a registered dealer is legally required to take credit of the duty paid and in each invoices pass on proportionate credit to the buyers. The invoices produced by the appellant show that he has done so. Not only he has taken credit but also passed on the same to the buyers. Therefore, as the appellant has passed on the credit to the buyers and also passed on burden of duty to the buyers, no refund can be sanctioned. - Decided against the appellant

Summary

Issues:
Refund claim based on Bills of Entry; Unjust enrichment; Evidence of non-availment of CENVAT Credit; Evidence of non-passing on the burden of duty to buyers.

Analysis:
The appellants filed a refund claim concerning two Bills of Entry, which led to a dispute over the goods' value. The CESTAT directed the department to process the refund claim within 30 days, emphasizing consideration of unjust enrichment. The appellant submitted evidence including a sales invoice stamped "Not for CENVAT" and a C.A. certificate indicating non-passing of duty burden to customers. However, the Assistant Commissioner rejected the claim citing incomplete evidence of non-availment of CENVAT Credit. The Commissioner (Appeals) upheld this decision, noting the absence of sales invoice copies.

The appellant's counsel argued that original sales invoices were submitted but misplaced by the adjudicating authority, necessitating the submission of a fresh set. The invoices were marked "No good for input tax credit" and "Not for CENVAT," with the balance-sheet reflecting customs duty as recoverable. The AR contended that no evidence of non-availment of CENVAT Credit was provided in the original refund application.

Upon review, it was observed that the balance-sheet for 2005-06 did not show the duty amount as recoverable, indicating the burden was passed on to buyers. The appellant, a registered dealer, was required to pass on duty credit to buyers as per Central Excise Rules, which was evident from the invoices. As the appellant had passed on the credit and duty burden to buyers, the refund claim was denied, leading to the dismissal of the appeal.

In conclusion, the judgment focused on the evidence of non-availment of CENVAT Credit and passing on the duty burden to buyers, ultimately leading to the dismissal of the refund claim based on the Bills of Entry.