9911796707
TMI Blog2007 (9) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... nd instead of being paid to the Appellant, in terms of Section 27(1) of the Customs Act, 1962. 2. The question that arises for consideration is as to whether the Appellant was able to rebut the presumption of unjust enrichment in respect of sanctioned refund claim of Rs. 8,75,68/-, credited to Consumer Welfare Fund? And consequently whether the Appellant is entitled for grant of refund with interest or not? 3. The facts in brief are that the Appellant imported Ball Bearings under Bill of Entry No. 961292 dated 5-2-2004 and paid Import Duty of Rs. 28,87,700/- on 6-02-2004. The DRI seized the goods and the seizure was challenged by the Appellant by filing a Writ Petition No. 1932 of 2004 in the Hon'ble Bombay High Court. Pursuant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods in question, imported vide the captioned Bill of Entry No. 961292 and also confirming that the incidence of duty deposit was not passed on to the buyers by the Appellant. The Asst. Commissioner sanctioned the refund of Rs. 8,75,068/-, but ordered that the same should be credited to the Consumer Welfare Fund, instead of being paid to the Appellant in terms of Section 27(1) of the Act. The Appellant challenged the same before the Commissioner (Appeals) by filing an Appeal u/s 128 of the Customs Act, 1962, to the limited extent of ordering the sanctioned refund amount to be credited to Consumer Welfare Fund. However, the Commissioner (Appeals) has not accepted the contentions of the Appellant that the documents submitted by them were suff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n alleged non-compliance of Section 28C of the Act, for not indicating in sale invoices the amount of such duty which will form part of price at which such goods are to be sold, was not an irrebuttable presumption. Moreover in the facts of the instant case, where the sales were under several invoices over a long period of time, and were not immediately at the time of provisional clearance of the goods, when the duty amount was not even ascertained, compliance of Section 28C was not possible. It can not be presumed that whatever appellants has recovered from his customers was first duty of Customs, as well as the deposit lying with the Customs, and thereafter his own costs. Change in price of goods for relevant period has not been shown by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time under several invoices. I find considerable force in the argument of the ld. Counsel for the Appellant that in the facts of the instant case compliance of Section 28C was practically impossible, because at the time of clearance the duty amount was yet to be ascertained, and the goods were sold not immediately on clearance but in small lots over a long period of time. The Appellant suffered a loss of about Rs. 17,77,279/-, even without taking into account the amount sought to be refunded. The disputed amount was shown as recoverable from Customs in the Balance Sheet, and the C.A. certificate not only confirms the same but also suggests that the duty incidence was not passed on the buyers. These documents therefore corroborate each othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in the invoice in terms of Section 28C of the Customs Act, by itself is not a ground for rejecting the refund of the importer on the ground of unjust enrichment. In the facts of the instant case, it can not be presumed that whatever the appellant has recovered from buyers was first duty of Customs and that deposit made with Customs, and thereafter its own costs, as held in Picasso Exports (supra). Considering the huge loss suffered by the Appellant, even without taking into account the amount of refund sought, in the facts of the instant case, there can be no other reasonable conclusion but that the Appellant has successfully rebutted the presumption of unjust enrichment, and is thus entitled for refund along with interest as applicable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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