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2019 (9) TMI 716 - CESTAT NEW DELHIRefund in cash - unjust enrichment - refund claim amounts in cash which have been ordered to be credited to the Consumer Welfare Fund on the ground that the appellants were not able to discharge the burden of unjust enrichment - HELD THAT:- The comparative analysis of prices, in a situation of change in the tax rates, is absolutely important to decide whether the additional tax burden in situation of increase in tax rates is being shifted to the buyer or not. This also has to be the important parameter to determine whether in a given situation whether there is a presence of unjust enrichment or not. We find that in the case at hand, the prices (both dealer price and RSP) indicate that the burden of enhanced rate of CVD has not been shifted to the buyers and, therefore, there cannot be any element of unjust enrichment. Hon’ble Supreme Court in the case of Commissioner of Customs New Delhi vs. Organan (India) Ltd. [2008 (9) TMI 62 - SUPREME COURT], wherein the Hon’ble Apex Court has held that if there is no change in the price post levy of duty and the Auditors’ certifies that the incidence of duty has not been passed to the customers, in that case, it can safely be presumed that since the duty burden has not been passed on to the customers and therefore, the question of unjust enrichment does not arise. Thus, the element of unjust enrichment are not present in the matter at hand. Fulfillment of requirement as prescribed u/s Section 28C and 28D of Customs Act, 1962 - HELD THAT:- The provision of Section 28C and 28D of Customs Act are presumptive provisions and once the importer assesse submits his claim that he has submitted the required sales invoices etc. it is on the part of the Department to establish that assessee has not passed the burden of enhanced duty on the customers. In this case we find that all the invoices, purchase and sales invoices have been submitted to the Department and Deputy Commissioner in his report dated 19 February 2018 has reported that burden of enhanced duty has been borne by the appellant and there is no element of unjust enrichment. Thus, the appellant has fulfilled this responsibility as cast by Section 28C and 28D of Customs Act, 1962 and Department has failed to establish any element of unjust enrichment. Thus, the appellants have been able to establish beyond doubt that burden of enhanced CVD has not been passed down to the buyers and therefore, the element of unjust enrichment is not present in this case, thus, the subject refunds are admissible to the appellants - the impugned order in appeal under challenge is devoid of any merit and deserves to be set aside - appeal allowed - decided in favor of appellant.
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