2020 (3) TMI 102 - AT - Customs

Refund claim - refund was allowed but was ordered to be credited to consumer welfare fund - principles of unjust enrichment - allegation that the appellant could not prove that they had not passed on the burden of excess duty to their customers - HELD THAT - The only ground on which the refund was ordered to be credited to consumer welfare fund was that they had received remittance in excess of what was indicated in the invoice. Therefore it was presumed that the burden of export duty has been passed on to the customers. The learned counsel for the appellant has satisfactorily explained that this was on account of the excess quantity exported as was determined after testing at the discharge port. After going through the provisional and final invoices it can be concluded that the appellant had not passed on the burden of export duty to their overseas customers - impugned order is modified to the extent of setting aside the direction to credit the amount to the consumer welfare fund - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Export duty refund claim
2. Unjust enrichment
3. Applicability of Customs Act, 1962

Analysis:
1. Export duty refund claim: The appellant exported iron ore fines and paid export duty at a certain rate. Subsequently, it was found that a lower rate was applicable based on the iron content. The appellant filed a refund claim, which was initially sanctioned but then ordered to be credited to the consumer welfare fund due to the presumption of unjust enrichment.

2. Unjust enrichment: The department contended that the burden of excess duty was passed on to customers, invoking Section 27 of the Customs Act, 1962. The lower authority rejected the appellant's argument based on the amount received from overseas buyers exceeding the invoiced amount. However, the appellant clarified that the discrepancy was due to the actual quantity exported differing from the provisional invoice, leading to a revised final invoice reflecting the correct quantity and value.

3. Applicability of Customs Act, 1962: The amendment to Section 27 of the Customs Act, 1962 made unjust enrichment applicable to exporters. The appellant demonstrated through invoice records that the amount received from overseas buyers was solely for the FOB value and not for the export duty. The tribunal, after reviewing the provisional and final invoices, concluded that the burden of export duty had not been passed on to customers, thereby allowing the appeal and setting aside the order to credit the refund to the consumer welfare fund.

In conclusion, the tribunal found in favor of the appellant, ruling that the burden of export duty had not been passed on to customers, and therefore, the refund claim should not be credited to the consumer welfare fund. The impugned order was modified accordingly, and the appeal was allowed with consequential relief.