TMI Blog2020 (2) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... consumer or end-user as there was no end-user or customer in the instant case. The authorities in uncanny avoidance to deal with this aspect has rendered the order vitiated and, therefore, decision of the authority qua depositing the amount into the consumer fund is required to be deprecated, quashed and set aside. The authority may be called upon to decide the aspect of payment of refund along with interest without further insisting upon any other material and based upon the material which has already been submitted and giving liberty to the petitioner to produce any material, if they so choose, and decide to make payment of refund with appropriate interest admissible under law within a period of 30 days from the date of receipt of writ of the Court - Petition allowed in part. - R/SPECIAL CIVIL APPLICATION NO. 19096 of 2018 - - - Dated:- 20-2-2020 - HONOURABLE MR. JUSTICE S. R. BRAHMBHATT And HONOURABLE DR. JUSTICE A. P. THAKER MR AJAY R MEHTA FOR THE PETITIONER MR DEVANG VYAS FOR THE RESPONDENT JUDGMENT ( PER : HONOURABLE MR.JUSTICE S. R. BRAHMBHATT ) 1. Present petition has been taken out for assailing order dated 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the refund claim were made, which were furnished, however, it continued and, therefore, the correspondence were exchanged between the parties. There were time and again orders by the authorities, which were challenged to the superior authorities and matters were remanded. The time was consumed thereunder but, ultimately, the competent authority passed an order on 23.1.2017, which was issued on 24.1.2017. Operative part whereof reads as under:- (i) I allow the benefit of exemption of Notification No.197/76-cus dated 02.08.1976 for the five B/Es mentioned at Sr. No. 1 to 5 in the table as discussed above, considering the same as provisionally assessed BOE as on date. (ii) I allow the benefit of exemption of Notification No. 515 / 86-cus dated 30.12.1986 read with Notification No. 25/ 87-Cus dated 23.01.1987 for the ten B/Es mentioned at Sr. No 6 to 15 in the table-B as discussed above considering the same as provisionally assessed as on date. (iii) The benefit of exemption of Notification No.25/ 87-Cus dated 23.01.1987 will also be extended to BOE No. F-00612 dated 17.02.1987, when the same will be produced. (iii) A Chart of Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /CENVAT ledgers/Register of the relevant period for verification of No Modvat Credit has been availed by your unit against the relevant Bill of Entry not furnished. (6) If the goods are further sold, the copies of sales invoices to be furnished with relevant sales ledger. (7) It is observed that certain Bill of Entry are relating to ONGC Ltd, Dehradun. Hence, a NOC required to be furnished by Dehradun unit; allowing you (Makarpura, Baroda Unit) to deal such claims on behalf of them. Accordingly, documents related to Dehradun Unit are required to be furnished. (8) Wokrsheet for Interest Calculation not furnished. In view of the above, you are requested to comply the above discrepancies / Deficiencies along with all requisite documents within 15 days to this office or otherwise your refund claim application shall be returned to you without further communication in the matter. (emphasis supplied) 2.4 The respondent appears to have send one more communication dated 5.1.2018 styling it as a reminder No.I for processing the refund. In reply thereto, the petitioner addressed the communication on January 17, 2018 narratin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est of ₹ 17,03,05,689.63 (Total claim of ₹ 22,44,88, 330.71). In this connection, it may be noted that you have not yet produced any documentary evidence before me that you have not passed on or recovered the incidence of Customs duty for which refund being claimed from the buyers or any other persons and same is borne by you. The aspect of Unjust Enrichment is net yet cleared in this case. Thus the following documents are invariably required by this office to examine the aspect of Unjust Enrichment . (1) Relevant Ledgers A/c / Balance Sheet, showing the customs duty paid against relevant Bill of Entry is recoverable from Customs authority and no recovery thereof has been made from the buyers or any other persons. (2) Relevant MODVAT/CENVAT ledgers/ Register of the relevant period for verification of No Modvat Credit has been availed by your unit against the relevant Bill of Entry . Further, you have stated that the matter is pertaining to the year 1985-86 and relevant documents/ledgers A/c are not available with you. Then, in the absence of same, how the CA has given respective Certificate dated 08.08.2017 without ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for petitioner submitted that he is ready with the matter and as the time is getting over, there is urgency in the matter and accordingly, he urges the Court to keep the matter on 10.2.2020. Put up on 10.02.2020. 5. Thereafter, the impugned order was passed on 29.11.2019, which by way of amendment is challenged in present petition on a ground that the same was nothing but an act of overreaching the process of Court, as when the Court was in sessin of the matter and when the authority did advert to the Court proceedings, chose to precipitate the entire proceedings by way of order impugned and indicating that the appeal would be available thereupon. This was an attempt as per the submission of the counsel to thwart the present proceedings. Learned counsel for the petitioner contended that the development of the facts in the matter and exchange of correspondence between the parties would be sufficiently clear to support the contention of the petitioner that the claim of refund has, in fact, inordinately been delayed, for the reasons best known to the authorities. 6. Learned counsel appearing for the petitioner further submitted that the facts touching upon the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic or design to delay the refund. There cannot be any interest on the part of the respondent in not releasing the refund on being satisfied with the requirement of payment of refund. Learned counsel for the respondent submitted that the Court, therefore, may not entertain this petition and dismiss the same. 8. This Court has heard learned counsel for the parties and perused the papers and annexures to the petition. 9. The entire issue is in a very narrow compass. The facts narrated herein above and rather the order impugned will throw sufficient light on the aspects of the petitioners' entitlement for receiving the refund. It would not be, therefore, out of place to extract and reproduce certain aspects and observations of the authority in respect of the claim and refund. The authority, as could be seen from perusal of the impugned order, enlisted the documents annexed by the petitioner, which deserve to be reproduced hereunder:- 17. The claimant has filed following documents with current refund claim application; (i) Refund application dated 16.08.2017 in prescribed proforma under Section 27 of Customs Act, 1962. (ii) Worksh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 27 of the Customs Act, 1962 where any duty is paid provisionally under Section 18 of the Customs Act, 1962, the limitation of one year shall be computed from the date of adjustment of duty after the final assessment thereof or in case of re-assessment, from the date of such re-assessment. The current application submitted by the claimant vide letter dated 16.08.2017 was received on 21.08.2017. Therefore, the refund application is filed within the one year time limit stipulated in the Section 27 of the Customs Act, 1962 from issuance of Order-in-Assessment No.KDL/DC/NC/105/Gr.-V/2016 dated 23.01.2017. Therefore, the refund application dated 16.08.2017 is not hit by bar of limitation of time provided in the Act ibid. Now I will discuss the merits of the case. .......... 23. Following the judicial discipline and acting upon the directions of the Commissioner of Customs (Appeal), in above said OIA dated 21.08.2013, the Deputy Commissioner (Group V), Custom House, Kandla vide Order-in-Assessment No.KDL/DC/NC/105/Gr.-V/2016 dated 23.01.2017 extended the benefit of exemption of Notification No.197/76-Cus dated 02.08.1976 and Notification No.515/86-Cus dated 30.12.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17.02.1987 359959 633528 515/86 25% 89990 543538 9 F- 00613 17.02.1987 3107 5826 515/86 25% 777 5049 10 F- 00614 17.02.1987 14342266 18984199 515/86 25% 3585567 15398632 11 F- 00615 17.02.1987 551987 922232 515/86 25% 137997 784235 12 F- 00616 17.02.1987 1087736 2518298 515/86 25% 2719 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competent authority on 14.02.2017. Therefore, considering above I find that, the stand of the final assessment of the 15 bills of entry as mentioned hereinabove in Table-2 by extending the benefit of exemption of Notification No. 197/76-Cus. dated 02.08.1976 and Notification No.515/86-Cus dated 30.12.1986 which is accepted by the department becomes final. Therefore, I am inclined to hold that, the claimant is eligible for refund of excess duty amount of ₹ 5,41,82,641/- subject to examination of doctrine of unjust enrichment which I will discuss in detail in upcoming paras. ....... 27. In view of above discussion I find that the claimant is eligible for refund on count of time limit and merit subject to examination of doctrine of unjust enrichment. Now I will take up the count of liability to pay interest to the claimant. ..... 30. In terms of the ab0ve provision of the Section 18(4) of the Customs Act, 1962 interest has to be paid to the claimant if the duty amount is not refunded to the claimant within three months from the date of final assessment of duty subject to sub-section (5) of Section under which the application shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claimant. ...... 46. I find that, the claimant had imported the goods in year 1986-87 and subsequently filed revised claim on 12.09.1989, 14.09.1989 and 15.09.1989. I further find that, the claimant had neither submitted documentary evidences required to prove Unjust Enrichment at the time of submitting revised claim in the year 1989 nor submitted thereafter. Therefore, the claimant's say that the unavailability of records as it is old cannot be accepted as they were not filed even in the year 1989. The claimant should have preserved and submitted the respective documents to comply the mandatory procedure as the claimant is required to prove that, he has really suffered the duty incidence. He cannot be re- compensated for what he has not lost. 47. As per the Section 27, 28C and 28D of the Customs Act, 1962 and other judicial pronouncements as mentioned above, the onus to rebut unjust enrichment is on the claimant until and unless the claimant satisfies the Custom authorities with relevant documents, indicating the fact that they have not passed on the duty to the customers, such a claim cannot be accepted. Further Section 28C and D of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of refund would not result into unjust enrichment to the recipient. 12. We are of the view that the order impugned unfortunately is absolutely silent qua the contention of the ONGC, which on the face of it, indicate that the machinery in question on which the duty was paid and duty was sought to be claimed as refund was not in any manner capable of being dealt with in or passing, so as to pass on the burden of duty to the consumer or end-user as there was no end-user or customer in the instant case. The authorities in uncanny avoidance to deal with this aspect has rendered the order vitiated and, therefore, decision of the authority qua depositing the amount into the consumer fund is required to be deprecated, quashed and set aside. 13. The question at this stage now arises is as to whether this Court should order refund along with interest or afford an opportunity to the authority for deciding the same. We are of the view that the authority may be called upon to decide the aspect of payment of refund along with interest without further insisting upon any other material and based upon the material which has already been submitted and giving liberty to the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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