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TMI Blog2017 (1) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... accounts, clearly show that the amount shown by the Appellants as deposit in their books of account - there is no question of passing of incidence to any other person arises. Appeal allowed - decided in favor of appellant. - C/576 & 577/12 - A/95153-95154/16/CB - Dated:- 28-12-2016 - Shri M.V. Ravindran, Member (Judicial) And Shri Raju, Member (Technical) Shri Prakash Shah, Advocate for the Appellant Shri M.K. Mall, AC (AR) for the Respondent ORDER Per: M.V. Ravindran The above two appeals are filed against the common order-in-appeal dated 4.05.2012, whereby the Commissioner of Customs (Appeals) upheld the two orders of the adjudicating authority rejecting two refund claims of the Appellants. 2. The brief facts of the case are that the Appellants are a merchant exporters. The Appellants were issued two advance licenses bearing Nos. 2073442 dated 07.02.1995 and 2073306 dated 23.01.1995. The Appellants had not fulfilled their export obligation in full under the above two advance licensees within the time specified in both the licenses. The Appellants had imported exempt materiel under the said two licenses and was delivered to the supporting manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which could not have been possible without submission of the relevant import / export documents including the Bill of Entry, customs attested invoices and customs attested packing list relating to the imported goods. 4.1 All the Exports under both the advance licenses have been logged in 2009 in pursuance of the order of this Tribunal. It is not the case of the department that the logging of the DEEC book was done without the relevant import/ export documents including the bills of entry, customs attested invoices and customs attested packing list. The Appellants further contend that they had submitted the documents sought by the department in relation to the refund claims vide their/their advocates letters dated 29.04.2009, 07.03.2000, 02.07.2003, 20.08.2004, 26.04.2005, 25.10.2005, 28.12.2005 and 23.02.2010. It is further contended by the Appellants that once it is not in dispute that the amount was deposited and no duty was payable by the Appellants on the goods imported on the strength of advance licenses, the refund thereof cannot be denied. It is further contended that requirement for submissions of original documents is procedural requirement and not mandatory under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t material were not cleared for home consumption and the question of passing on the incidence of burden of the amount deposited pending discharge of export obligation does not arise. It was further argued that the Government of India always refunds/rebates the duty paid both on the inputs or export products as part of its policy. Its policy is to export the goods and not the taxes. This is evident from sections 74 and 75 of the Customs Act and Rule 18 and 19 of the Central Excise Rules, 2002. 4.5 Relying on the following precedents, it was argued that doctrine of unjust enrichment does not apply in the present case. a) 2009 (248) E.L.T. 457 (Tri. - Del.) b) 2014 (312) E.L.T. 73 (Tri. - Chennai), It was further argued that presumption in section 28C of the Customs Act is not applicable in the present case in absence of any sale of exempted material and exempt material having been used in the manufacture of export goods by physically incorporating in them. Further, the Appellants had disclosed the said amounts as Amount recoverable from the Customs Authorities in the books of account and also submitted a certificate from the Chartered Accountants duly certifying that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of which amounts were deposited by the Appellants and refund thereof is claimed by the Appellants. 6.2 We find that both the Adjudicating Authority and the Commissioner (Appeals) have not denied the refund on merits. We find that the refund is rejected only on the ground that the Appellants did not produce originals of Bills of Entry, Customs attested invoices and packing list. The adjudicating authority also rejected the contention on the ground that originals of the said four challans are not produced before him. We however, find that the Commissioner (Appeals) records that the original challans were produced before her. In the peculiar facts of the present case, where there is not dispute about the deposit of the amount and that the amount is not deposited with regard to any particular bills of entry, the original of the triplicate bills of entry are not relevant for the purpose of refund of duty paid through the said four challans. Further, the customs attested invoices and customs attested packing list are also not relevant documents in the facts of the present case. We are of the opinion that the rejection of refund on the ground of non production of originals o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , applies and the doctrine of unjust enrichment in the facts of the present case is not applicable. 10. We further find considerable force in the submission of the Appellants that the Government of India refunds/rebates that duty paid either on the raw material or on the finished goods exported by the exporter. The Government of India, as a matter of policy, allows the return of the duty paid on the raw material used in the manufacture of export product. This clearly indicates that the Government does not want the exporter to suffer by exporting the goods. In view thereof, we find that there is no question of unjust enrichment arises. 11. In any event, we find that the certificate of the Chartered Accountant produced by the Appellants and the Balance Sheet of the Appellants produced on the record for the period 1997-2009 with corresponding ledger accounts, clearly show that the amount shown by the Appellants as deposit in their books of account. In view thereof, there is no question of passing of incidence to any other person arises. 12. In the circumstances, we set aside the impugned orders and allow the appeals with consequential relief, if any. ( Order pronounced in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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