2019 (12) TMI 1219 - AT - Customs

Refund of Additional Customs Duty (CVD) - excess payment made under protest - import under Section 3 (1) of Customs Tariff Act 1975 read with Sl. No. 263 A and condition No.16 of Notification No. 12/2012-EX dated 17.03.2012 - tax burden passed to buyers or not - principles of unjust enrichment - liability to deposit to Consumer Welfare Fund - HELD THAT - Apparently and admittedly all the relevant documents were made good the deficiency by the assessee-respondent as were sufficient to sanction the refund. Partial amount of claim was rejected only on the ground that Balance-sheet was not showing the accountable of the amount of impugned Bill of Entry. When assessees invoice showed a composite price and duty was not indicated separately and the sale price of the goods before as well as after the reclassification revaluation etc. remained the same it can be concluded that the incidence of duty was not passed on to the consumer. Merely because the Excise duty is booked as expenditure in Profit Loss account it cannot be said the incidence of duty has been passed on. Mere fact that the amount of differential CVD is shown as recoverable in profit and loss account is in itself not sufficient to prove that burden thereof has been passed by the assessee to the buyers. Onus otherwise rests upon the Department to prove the same. There is no such evidence produced by the Department. On the contrary the assessee has placed on record the C.A. Certificate falsifying the allegations of unjust enrichment. Same cannot be ignored that too in absence of any evidence to the contrary. The questions decided in favour of the assessee-respondents - Appeal dismissed - decided against Revenue.

Summary

Issues Involved:
1. Whether the assessee passed on the tax burden to buyers, implying unjust enrichment.
2. Whether the original adjudicating authority was correct in directing part of the refunded amount to be deposited in the Consumer Welfare Fund.

Issue-wise Detailed Analysis:

1. Unjust Enrichment and Passing of Tax Burden:
The primary question was whether the assessee passed on the tax burden to buyers, resulting in unjust enrichment. The Department argued that the refund claimants did not show the refund amounts in their audited books as receivable from the Government, implying that the tax burden was passed on to the buyers. The Department emphasized that the CA Certificate was not concrete evidence and lacked corroborative evidence. They relied on several case laws to argue that uniformity in price before and after assessment does not necessarily mean that the incidence of duty was not passed on to buyers.

Conversely, the respondent-assessee produced the CA Certificate and balance sheets, arguing that they had not passed on the tax burden to the buyers. The Commissioner (Appeals) accepted these documents, stating that the refund should be sanctioned as the assessee had rebutted the presumption of unjust enrichment. The Tribunal referred to the decision in Yu Televentures Pvt. Ltd., which held that the absence of a refund claim in the balance sheet for a particular financial year does not mean the petitioner is not entitled to claim a refund if the burden of CVD was not passed on to customers.

The Tribunal also cited Vishal Video and Appliances Ltd. and Tecil Chemicals & Hydro Power Ltd., which supported the view that the mere absence of a refund claim in the balance sheet is insufficient to prove unjust enrichment. The Tribunal concluded that the CA Certificate and other documents provided by the assessee were sufficient to rebut the presumption of unjust enrichment.

2. Direction to Deposit Refund in Consumer Welfare Fund:
The original adjudicating authority had directed part of the refunded amount to be deposited in the Consumer Welfare Fund, citing unjust enrichment. However, the Tribunal found that the Department did not provide specific evidence to rebut the findings of the Commissioner (Appeals) that the burden of duty incidence was not passed on to customers. The Tribunal noted that the sale price of goods remained constant before and after the reclassification, indicating that the incidence of duty was not passed on to consumers.

The Tribunal referred to several judgments, including Commissioner of Customs, Bangalore vs. Apple India Pvt. Ltd., which held that the presumption of passing on the duty incidence is rebuttable and that the CA Certificate is sufficient evidence unless countered by the Revenue authorities. The Tribunal concluded that the Department failed to disprove the CA Certificate and other evidence provided by the assessee.

Conclusion:
The Tribunal upheld the order of the Commissioner (Appeals) and dismissed the appeals filed by the Department. It held that the assessee had successfully rebutted the presumption of unjust enrichment, and the CA Certificate, along with other documents, was sufficient evidence. The Tribunal directed that the entire refund amount should be paid to the assessee and not deposited in the Consumer Welfare Fund.