TMI Blog2018 (7) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... ine of unjust enrichment does not apply to their case. If the person claiming the refund can show that the burden of duty has not been passed on to the customers, it should be given to such person. In this case, the Assistant Commissioner has erred in rejecting the claim on the ground of unjust enrichment. He should have sanctioned the amount and ordered it to be credited to the consumer welfare fund - the Order-in-Appeal is modified to that extent that the refund of the amount is sanctioned and ordered to be credited to the consumer welfare fund. Appeal disposed off. - Appeal No. C/30171/2018 - Final Order No. A/30650/2018 - Dated:- 29-6-2018 - Hon ble Mr. P. V. Subba Rao, Member ( Technical ) None for the Appellant Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al No.314/2016 dated 11.05.2017 on the ground that the appellant had not proved that the burden of Excise Duty has not been passed on to their consumers. The appellant in this case is a manufacturer of steel products and he used steel scrap to manufacture steel products. The question to be considered is whether in such case the incidence of duty on the raw-materials which were imported should be deemed to have been passed on to the customers in the form of prices in the final products or not. This issue is decided by the Hon ble Supreme Court in the case of Solar Pesticides Pvt Ltd [2000 (116) ELT 401 (SC)]. It was held as follows: Unjust enrichment means passing not only of the duty directly to another person but also when passed indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey have availed CENVAT credit of ₹ 10,33,681/- paying CVD and SAD and filed a refund claim only for ₹ 1,79,964/- relating to BCD and Custom Cess. (d) They neither passed on the burden of this amount to the customers nor availed CENVAT credit. (e) Unjust enrichment would arise if and only when duty liability has been passed on to the buyers/customers. They also relied on the following case laws: (i) Shakun Overseas Ltd Vs Commissioner of Customs, Chennai [2002 (140) ELT 444 (Tri-Chennai)] (ii) Panyam Cements Minerals Ltd Vs Commissioner of C. Ex., Belgaum [2004 (177) ELT 357 (Tri-Bang.)] (iii) Agrotech Foods Ltd Vs Commissioner of Customs, Bangalore [2005 (192) ELT 273 (Tri-Bang.)] 5. They pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es me with no option or to conclude that the appellant have not fulfilled their responsibility in showing that unjust enrichment does not apply to their case. However, as may be seen from Sec.27(2) of the Customs Act, where the refund is liable to be sanctioned but the person claiming the refund has not been able to prove that he has not passed on the burden of duty to their customers, such amount should be sanctioned and credited to the consumer welfare fund. If the person claiming the refund can show that the burden of duty has not been passed on to the customers, it should be given to such person. In this case, the Assistant Commissioner has erred in rejecting the claim on the ground of unjust enrichment. He should have sanctioned the am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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