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TMI Blog2004 (8) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... teels v. CC [ 1996 (9) TMI 154 - HIGH COURT OF JUDICATURE AT BOMBAY] are clearly distinguished to the facts of this case as in those cases, the refund claims were rejected on the ground that the refund claim was filed beyond the period of six months. It was therefore, held that the time-bar as provided u/s 27 of the Act would not be applicable in the case of such arithmetical or clerical errors. Both the lower authorities have suo motu admitted the refund claim and also allowed the refund claim as admissible but credited the refund amount to the Consumer Welfare Fund as the doctrine of unjust enrichment was found applicable in their case and the presumption that incidence of duty has been passed on to the buyers under Section 28D was found to be against them as they did not submit documentary proof to the original authority to satisfy him or to the lower appellate authority to satisfy him that the burden of incidence of duty has not been passed on to the buyer. The plea of the learned Advocate for the appellants cannot therefore, be countenanced. Thus, I do not find any infirmity in the order passed by both the lower authorises and reject the appeal. It is ordered accordingly. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 27 and Section 28C of the Customs Act, 1962 wherein the appellant has to produce the documentary evidence as proof against unjust enrichment. It was also observed by the learned Commissioner (Appeals) that the adjudicating authority has in fact sanctioned the refund under Section 27 of the Customs Act, 1962 and directed the same to be credited in the Consumer Welfare Fund since the appellant failed to produce the evidence of unjust enrichment. It was in this background, the learned Commissioner (Appeals) was also of the opinion that the order passed by the lower authority was legal and proper and he was not inclined to interfere with the order passed by the lower authority and thus rejected their appeal. Aggrieved by the impugned order, the appellants have come in appeal before the Tribunal on the ground that the Commissioner (Appeals) has errored in rejecting the appeal and therefore, the order passed by him is liable to be set aside. They also submitted that the order passed by the Commissioner (Appeals) does not contain any reason whatsoever and therefore, is non-speaking order, in gross violation of principles of natural justice and hence liable to be set aside. They fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bar of unjust enrichment is not applicable to the facts of their case. The Advocate also invited my attention to the judgment rendered by the Hon'ble High Court of Judicature at Bombay in the case of Keshari Steels v. Collector of Customs, Bombay reported in [2000 (115) E.L.T. 320] wherein it was held that the refund arising out of correction of clerical or arithmetical error under Section 154 of the Customs Act, 1962 does not attract the provisions of Section 27 for the purposes of calculation of the limitation period. In view of the above submission, the learned Advocate submitted that this was only a clerical or arithmetical error and refund should have been granted and paid to them. 5. Appearing on behalf of the Revenue, the learned JDR Shri R.K. Chandan submits that the original authority and the appellate authority have sanctioned the refund claim by accepting the clerical/arithmetical error as provided under Section 154 of the Customs Act, 1962 although there was no written request from them for such correction at any time. It was after accepting the arithmetical error, the original authority found that they are entitled for refund and the refund was accordingly sanctioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder and terms of supply; submission of chartered accountant certificate is not sufficient proof to show that burden of duty has not been passed on to any other person. He, therefore, submitted that the impugned order may be sustained and their appeal may be rejected. 6. I have perused the records and heard both the sides. The appellants manufacture JG engines and the gaskets which were imported by them, have been partly used in their production schedule and partly sold to their customers. They had filed a refund claim on ground of wrong declaration of currency i.e. US $ instead of French Francs. Both the lower authorities found that the refund claim was admissible on merits. Therefore, the provisions of Section 154 of the Customs Act were taken contingence by the proper officer suo motu and refund was granted. The short question which arises for my consideration is whether the doctrine of unjust enrichment is applicable in this case. The appellants have submitted a Chartered Accountant certificate but without any supporting documents like sale invoice etc. to prove that the burden of incidence of duty has not been passed on to the consumer. I am of the considered opinion that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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