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TMI Blog2023 (6) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... ey had not passed on total amount of applicable Customs Duty to their customers except for the CA s Certificate. The statutory provisions concerning grant of refund and application of unjust enrichment are very clear. The Respondents were required to give clear evidence to the sanctioning authority that they had not collected the duty or had only partially collected the duty instead of full duty by way of any relevant document. They have clearly failed to do so. In fact, the statutory provisions clearly provided for the documents which would show the element of duty in the price and if such documents were produced it would have clearly shown the exact amount of duty included in the price or otherwise. They have not produced any such documents. Therefore, in the absence of any such evidence, merely producing CA certificate would not suffice to shift the burden of presumption for the purpose of Section 27 read with Section 28C of the Customs Act. In the present case, barring CA certificate, no other evidence has been produced by the Respondents before the Adjudicating Authority. As against this, the Department has clearly brought out certain evidence like the Respondents having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bar of unjust enrichment and the refund amount is liable to be granted to the Appellants instead of crediting the same to the Consumer Welfare Fund as held by the Commissioner (Appeals), is legal and proper; (ii) Whether, by an order passed under Section 129B of the Customs Act, 1962, the Hon ble Tribunal should set aside the orders passed on the issue raised in the present review order and or pass such other orders as the Hon ble Tribunal deems fit. 3. The learned DR submits that the issue whether the doctrine of unjust enrichment is involved and applicable in the instant case or not is settled issue. He takes the Bench through the facts of the case and grounds on which Original Authority has invoked the applicability of bar of unjust enrichment, which was later on set aside by the Commissioner (Appeals). The Department is in appeal before this Bench against the said Order of Commissioner (Appeals) setting aside the Order allowing the refund claim, but proposing to credit the same to the Consumer Welfare Fund. 4. The Department, in their Appeal, mainly contests that the Commissioner s decision that the amount would not be shown as receivable in the Balance Sheet of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to in Section 28C) as the applicant may furnish to establish that the amount of duty or interest, in relation to which such refund is claimed was collected from, or paid by him and the incidence of such duty or interest, has not been passed on by him to any other person. He also invites the attention to Section 28C, which, inter alia, provides for indication of amount of duty paid in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. He also invites attention to Section 28D which provides for presumption about incidence of duty having been passed on to buyer unless the contrary is proved by the claimant. Therefore, it will be deemed to have been passed unless evidence to the contrary is produced by the person claiming refund. 8. The Department has also submitted plethora of case laws in support of their claim that principle of unjust enrichment has been rightly invoked by the Original Authority and the Commissioner (Appeals) has not correctly appreciated the same and rejected the appeal of the Department. Learned DR invites the attention to the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the claimant. In this case, the refund was given only after the impugned OIA dated 30.09.2022. The refund was granted vide OIO No.03/2023-ICD dated 25.01.2023. Hence the refund cannot be shown as receivable till the impugned OIA was issued. After the issue of refund order consequent to the impugned OIA, the refund will be shown as receipt (not receivable) during the FY 2022-2023. (iv) The Department cannot suggest something which is not possible as per the established Code of Accounting based on facts. (v) The Appellant insists on performance of an impossible thing and hence is not sustainable as per the accepted doctrine of impossibility . (vi) The case of HPCL vs CCE, Mumbai relied upon, relates to Central Excise and is distinguishable on facts as well as law. The issue involved in HPCL s case were limitation, procedure of payment and protest and unjust enrichment. It was urged that the payment was under protest but they have not followed the procedure prescribed under Rule 233B of CER. Therefore, the claim that the excise duty was paid under protest was not accepted. Basically the case is related to limitation under Central Excise Act. As regards to unjust enrich ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the price or otherwise. They have not produced any such documents. Therefore, in the absence of any such evidence, merely producing CA certificate would not suffice to shift the burden of presumption for the purpose of Section 27 read with Section 28C of the Customs Act. 14. On the other hand, the learned DR has invited the attention to plethora of cases and especially to the settled position in the case of Ispat Industries Ltd vs Commissioner of Customs (Preventive), Mumbai [2015-TIOL-614-CESTAT Mum] wherein, inter alia, it was held that if the duty incidence was not passed on then the same should have been recorded in their receivable account. The other judgments relied upon in support of argument that merely producing a CA certificate would not suffice to prove that the incidence has not been passed on, are as follows: (i) Commr. of Customs (Exports), Chennai vs BPL Ltd [2010 (259) ELT 526 (Mad.)] (ii) Shoppers Stop Ltd vs Commr. of Customs (Exports), Chennai [2018 (8) GSTL 47 (Mad.)] (iii) Hindustan Petroleum Corporation Ltd vs CCE, Mumbai-II [2015 (317) ELT 379 (Tri-Mumbai)] (iv) Adarsh Kumar Goel and Rajesh Bindal, JJJCT Ltd vs CCE [2006 (202) ELT 773 (P H)] ..... X X X X Extracts X X X X X X X X Extracts X X X X
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