2017 (6) TMI 1223 - AT - Customs

Refund of special additional duty credited to the Fund and not released - Unjust Enrichment - section 27 of Customs Act 1962 - inability of the appellant to establish that the duty burden had not been passed on to the buyer of the goods that precluded the release of the refund to them - Held that - The appellant has produced the certificate of Chartered Accountant indicating that the duty burden had not been passed on - the credit of the sanctioned amount to the Fund is not tenable - appeal allowed - decided in favor of appellant.

Summary

Issues involved:
Sanction of refund of special additional duty under Customs Act, 1962 - Compliance with conditions for refund - Burden of duty passed on to buyer - Interpretation of notification no. 102/07-Cus - Documents required for CENVAT credit - Exemption under notification 102/2007-Cus - Endorsement on commercial invoices - Evidence of bearing duty incidence.

Analysis:
The dispute in the appeals pertained to the sanction of a refund of special additional duty under the Customs Act, 1962, amounting to Rs. 8,07,863 and Rs. 17,81,403, which was credited to the Fund instead of being released to the appellant as per notification no. 102/07-Cus. It was acknowledged that the appellant had fulfilled all conditions for the refund, but the release was withheld due to the alleged failure to prove that the duty burden had not been passed on to the buyer.

The Tribunal considered the interpretation of notification no. 102/07-Cus, which exempts imported products from special additional duty if certain conditions are met. It was highlighted that the objective of the levy was to create a level playing field between domestically produced goods and imported goods, especially when the imported goods are sold in the domestic market bearing the burden of local taxes.

Regarding the documents required for CENVAT credit, it was emphasized that the duty element must be specified in the invoices for credit to be available. Non-declaration of the duty in the invoice implies that no credit can be claimed. The Tribunal also referred to previous judgments to support a liberal construction of exemption clauses and the need for fulfilling conditions stipulated in the notification for availing exemptions.

In the specific case, the appellant had not passed on the duty burden, as confirmed by a certificate from a Chartered Accountant. Relying on precedents and the evidence presented, the Tribunal concluded that the credit of the sanctioned amount to the Fund was not justified. Consequently, the impugned orders were set aside, and the appeals were allowed, emphasizing that the decision was limited to the facts of the case and did not negate the requirement to fulfill exemption notification conditions.