2018 (8) TMI 501 - AT - Customs

Refund credited to consumer welfare fund - unjust enrichment - Held that - Whether the incidence of excess paid duty was passed on or otherwise has not been established for the reason that the assessee have not produced the necessary documents before both the lower authorities. In these circumstances an opportunity can be given to the assesse to produce all the documents before the adjudicating authority to establish that whether the incidence of excess paid duty during the provisional assessment was passed on to any other person - matter on remand. Demand of Interest - provisional assessment - Held that - Before 13.07.2006 there was no provision for interest in case of any duty stand payable on finalization of the provisional assessment. Therefore in case of provisional assessment being finalized Section 28AB is not applicable. When Government realized that there should be a provision of interest even in case of provisional assessment when it is finalized a specific provision by inserting sub Section (3) was made in Section 18 of the Customs Act 1962 - demand of interest for the period prior to 13.07.2006 set aside. Appeal allowed in part and part matter on remand.

Summary

Issues:
1. Crediting refund amount into consumer welfare fund.
2. Challenge against the demand of interest.

Analysis:
1. The appellant imported consignments of copper concentrate and filed bill of entry. The department provisionally assessed the bills, leading to excess duty payment and interest demand. The excess amount was credited to the consumer welfare fund. Appeals were filed against the credit and interest demand. The Ld. Commissioner upheld the credit but dropped the interest demand up to a certain period.

2. The appellant argued that unjust enrichment did not apply due to the peculiar pricing of goods. They contended that necessary documents were not submitted to verify unjust enrichment. The Revenue sought interest payment for the period before a specific provision was inserted. Case laws were cited to support arguments. The Revenue claimed that every refund must pass the unjust enrichment test. They argued that interest was required under a general provision during the relevant period.

3. The Tribunal considered both sides' submissions. Regarding unjust enrichment, the appellant failed to establish whether excess duty incidence was passed on. An opportunity was granted to produce necessary documents for verification. The appellant's appeals were allowed for remand. Concerning interest demand, the Tribunal noted the absence of a provision for interest before a specific date. The Tribunal agreed with the dropping of interest demand by the Ld. Commissioner up to that date. Precedents were cited to support this decision. The Revenue's appeal was dismissed as the demand for interest did not apply before the specified date.

4. The Tribunal allowed the appellant's appeals for remand to establish unjust enrichment. The Revenue's appeal was dismissed as interest demand was not applicable before a specific provision was inserted. The Tribunal upheld the dropping of interest demand by the Ld. Commissioner. The orders were pronounced in open court.