TMI Blog2015 (4) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... y unjust enrichment. If the incidence of duty paid is borne by another/any other person, then the person claiming the refund will be unjustly enriched at the cost of other(s). Thus, in such eventuality, the refund amount shall be credited to the said Fund, instead of sanctioning in favour of the applicant. Showing the excess amount of Customs duty in the Balance Sheet for the period 2011-12, that to after rejection of the refund application by the original authority, is not at all relevant since the said amount was admittedly considered in the cost of production for the year 2008-09 and was absorbed in the sale value. Therefore, as per my opinion, the appellant has no locus standi to seek refund from the revenue to be unjustly enriched at the expense of some other person. In absence of any plausible evidence, the certificate furnished by the appellant cannot be relied on to arrive at the conclusion that the refund claimed amount has not been loaded in the costing of the garments sold in the year of import. If the refund is sanctioned to the assessee without proper verification of the books of account, there is every possibility of enrichment by the receipt of a benefit to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-assessing the Bill of Entry. The request of the appellant was turndown vide letter dated 28.07.2009 by stating that assessment of the B/E cannot be re-opened. On an appeal filed by the appellant against the said letter, the Commissioner (Appeals) vide order dated 07.10.2009 directed for re-assessment of the B/E. Pursuant to such directions, the original authority re-assessed the B/E, by assessing the duty payable as ₹ 75,247/-, as against the duty paid amounting to ₹ 5,51,193/-. Consequently, the appellant filed the application, claiming excess Customs duty of ₹ 4,75,946/- as refund. The Assistant Commissioner (Refunds) rejected the claim vide order dated 20.10.2010 on the ground that the amount of duty paid was shown as expenses in the P L Account of the appellant and thereby attracted principles of doctrine of unjust enrichment. On the appeal filed by the appellant, the Commissioner (Appeals) vide the impugned order has upheld the order of original authority. Hence, the present appeal before this Tribunal. 3.In the grounds of appeal, the appellant submitted that the Chartered Accountant's certificates indicating that the excess amount of Customs duty w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. In terms of sub-section (1) of the said section, an application for refund of any duty paid by a person in pursuance of an assessment or borne by him shall be made to the jurisdictional Assistant/Deputy Commissioner of Customs. Sub-section (2) of the said section provides that on receipt of the refund application, if the said statutory authority is satisfied that the duty paid by the applicant is refundable, then he has to pass an order accordingly and the amount of refund shall be credited to the Consumer Welfare Fund. As per the first proviso to sub-section (2) of the said section, the amount of duty as determined by the statutory authority shall, instead of being credited to the said Fund, be paid to the applicant, if such amount is relatable to the duty paid by the importer, if he had not passed on the incidence of such duty to any other person. Section 28D of the Act contains fiction to the effect that every person who has paid the duty on any goods under the Act shall be deemed to have passed on the full incidence of the duty to the buyer of the goods. This presumption is rebuttable by the person who claims refund of the duties. Therefore every person claiming refund under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y considered in the cost of production for the year 2008-09 and was absorbed in the sale value. Therefore, as per my opinion, the appellant has no locus standi to seek refund from the revenue to be unjustly enriched at the expense of some other person. 9.In context with the above observations, I rely upon the judgment of Hon'ble Supreme Court delivered in the case of Union of India - Vs. - Solar Pesticides Pvt. Ltd., reported in 2000 (116) ELT 401 (S.C.), wherein it has been held that if the duty amount was considered in the product costing and consequently was added to the sale price, the incidence of duty will be held to have been passed on to the customer. The relevant paragraph is extracted below :- 17. The use of the words incidence of such duty .. is significant. The words incidence of such duty mean the burden of duty. Section 27(1) of the Act talks of the incidence of duty being passed on and not the duty as such being passed on to another person. To put it differently the expression incidence of such duty in relation to its being passed on to another person would take it within its ambit not only the passing of the duty directly to another person but also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the claim for refund. The said Judgment cannot be construed to lay down the proposition of law that the certificate issued by the Chartered Account would automatically enable the person to get exemption in the absence of any other evidence to support that he is entitled to refund. Hence, on a consideration of the above said Judgment and also on the consideration of the facts involved, we are of the opinion that the appeal will have to be allowed and accordingly the same is allowed and the question of law framed is answered in favour of the revenue. 11.I concur with the findings recorded in the impugned order that showing the amount in the books of accounts for the succeeding years as receivable' in terms of Section 41(1) of the Income Tax Act, 1961 is applicable only to Income Tax Act and have no applications for refund of Customs duty. The Customs duties, Excise duties, Service tax constitute indirect taxes. These levies have been so named owing to the fact that even though the levy is upon the assessee or the person liable to pay tax, the burden is usually passed on to the customer, who in turn indirectly pays the tax. Hence, in such an event, if the refund is sanctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any evidence produced by the appellant that the incidence of such duty amount has been borne by it and not passed on to any other person. Even assuming that the amount has been collected without the authority of law, still the doctrine of unjust enrichment is applicable for its refund to the applicant as per the ruling of Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. -Vs. - Union of India, reported in 1997 (89) ELT 247 (S.C.). The relevant portion of the said rule as recorded in paragraph 99 is reproduced below :- The doctrine of unjust enrichment is a just and salutory doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. 14.The decision in the case of Flow Tech Power (supra) cited by the appellant is contextually different to the facts of the present case, in as much as, in the said decided case, the excess paid duty has been absorbed by the applicant, and upon verification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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