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2022 (2) TMI 151 - AT - CustomsRecovery of sanctioned refund of Rubber cess paid - recovery sought on the ground that the Bill of Entry were neither reassessed nor assessment was modified in appeal proceeding and hence the refund was not maintainable - violation of principles of unjust enrichment - HELD THAT:- As per the facts of the case, the bills of entry assessed at nil rate of duty. Subsequent to the final assessment of Bills of entry,the revenue has insisted for payment of Rubber Cess in cash on the imported rubber, consequently, the appellant have deposited the Rubber Cess through various challans. Since the Bills of entry were assessed at nil rate of duty, there is no issue arises out of the Bills of entry which can be challenged by the appellant. The bills of entry assessed can be challenged only in those cases where the duty was on a higher side and excess duty was not payable in order to claim the refund of such excess paid duty. The assessee is first required to challenge the bills of entry and consequential to outcome of the challenge to assessment the appellant become entitle for the refund - However, in the present case, admittedly the bills of entry were assessed at the nil rate of duty therefore, there was nothing exist to challenge in the Bills of entry. The rubber cess was paid by the appellant separately through challan only on insistence of the department. However, even such payment has not been assessed by the department therefore, as regard the payment of rubber cess there was neither any assessment nor any need to challenge the same therefore, in our considered view the learned Commissioner (Appeals) has wrongly held that the appellants were required to challenge the assessment of Bills of entry. There is no dispute that the rubber cess paid by the appellant was legally not payable therefore; the amount of rubber cess paid by the appellant under protest became refundable. This very same issue has been considered by the Hon’ble Bombay High Court in the case of SESA GOA LTD. VERSUS COMMISSIONER OF CUSTOMS, GOA [2015 (5) TMI 879 - BOMBAY HIGH COURT], where it was held that when the assessment is at nil rate of duty any amount paid separately, for the purpose of the refund of the same the assessment of bills of entry need not be challenged. Principles of Unjust enrichment - HELD THAT:- The appellant have clearly shown the amount of refund as receivable in their Books of Accounts and the same was reinforced by Chartered Accountant certificate. Therefore, the appellant have established that the incidence of rubber cess paid by them, and for which the refund was sought for, has not been passed on to any other person, accordingly, the refund is not hit by unjust enrichment. The appellant are entitled for the refund of Rubber cess paid by them - Appeal allowed - decided in favor of appellant.
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