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2019 (5) TMI 1080 - AT - CustomsRefund of excess paid duty - unjust enrichment - machines sold at a loss - HELD THAT:- Once the sale price is less and that the one out of five machines could not fetch any money, as it could not be sold, it is clear that the appellant had suffered. It is settled principle that when there is an element of loss, there arises no question of any unjust enrichment. Section 27 (2) of Customs Act, 1962 stipulates that the refundable amount shall be credited to Consumer Welfare Fund but only in a condition where it is shown that the burden of duty paid has been passed on by the importer. As per Customs Manual also, the condition of holding unjust enrichment and for appropriating / transferring the amount refundable to Consumer Welfare Fund is applicable except where the importer has not passed the incidence of such duty and interest to any other person (there are other conditions also but not applicable to the facts of the present case). It becomes abundantly clear that if and only if the incidence of duty is proved to be passed on by the importer to the buyers that the refund of the impugned amount could be transferred to the Consumer Welfare Fund. The order under challenge is the result of mere presumptions. There is no evidence by the Department to rebut the certificate given by the appellant’s Chartered Accountant. Otherwise also the higher duty as was assessed provisionally stands already set aside - Seen from any angle, it is not at all the case of appellant being enriched unjustly. Refund allowed - appeal allowed - decided in favor of appellant.
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