2017 (11) TMI 429 - AT - Customs

Refund claim - unjust enrichment - finalisation of provisional assessment - case of assessee is that the question of passing the duty to anyone else does not arise in the present case as there is no buyer and seller and entire consumption was captive consumption - Held that - identical issue decided in the case of CC, Kandla Vs. Ambica Maritime Ltd. 2007 (8) TMI 518 - CESTAT, AHMEDABAD , where it was held that the same was a notional amount and the quantity for which the duty was paid was not consumed entirely in India and as such I am of the view that Commissioner (Appeals) has rightly held that the doctrine of unjust enrichment will not be applicable - appeal dismissed - decided against Revenue.

Summary

Issues:
Appeal against Order-in-Original rejection by Commissioner(Appeals) - Excess payment on provisional assessment - Refund claim - Doctrine of unjust enrichment - Buyer and seller concept in bunkers supply - Chartered Accountant certificate on unjust enrichment - Captive consumption - Applicability of doctrine of unjust enrichment.

Analysis:
The case involves an appeal by the Revenue challenging the rejection of their appeal against the Order-in-Original by the Commissioner(Appeals). The dispute arose from a provisional assessment where an excess payment of ?3,72,765 was identified on bunkers and provisions for a vessel during its coastal run. The claimant sought a refund, which was initially sanctioned but later reviewed due to the absence of verification on unjust enrichment. The Department contended that the doctrine of unjust enrichment was not considered, and the Commissioner(Appeals) erred in disregarding the buyer and seller concept in bunkers supply.

The Revenue argued that the impugned order failed to address the doctrine of unjust enrichment and incorrectly dismissed the concept of buyer and seller in the bunkers supply scenario. They also objected to the acceptance of a Chartered Accountant certificate without proper rebuttal regarding the duty incidence passing on to others. On the contrary, the assessee defended the order, emphasizing that the refund was granted after thorough consideration of all evidence. They relied on previous decisions and a CA certificate confirming no duty passing on to others due to captive consumption.

The assessee cited precedents where similar issues were addressed, highlighting that the provisional duty payment was not actual duty but a deposit based on estimates. The Tribunal's previous rulings supported the view that in cases of estimated duty, the doctrine of unjust enrichment might not be applicable. Relying on these decisions, the impugned order was upheld, and the appeal of the Revenue was dismissed. The judgment emphasized the absence of buyer-seller dynamics in captive consumption scenarios, leading to the rejection of the Revenue's appeal and the disposal of cross objections accordingly.