TMI Blog2023 (6) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequence, the amount of refund granted has to be held erroneously granted to the Appellants which is liable to be recovered from them as per law. The entire issue of whether they were entitled to exemption or not, has already been decided by this Tribunal and the only limited issue was the consequential refund available to them. The Original Authority has granted the same without examining the principle of unjust enrichment, whereas, the Appellate Authority has set aside the said Order holding that Appellants have not been able to cross the bar of unjust enrichment by proving that they have not passed on the incidence of duty. In the interest of justice, the matter needs to be referred back to the Original Authority to go through th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely on the ground that the Original Authority has not examined the question of compliance of the Appellant to the principle of unjust enrichment as is required under the provisions of Sec.27(2)(a) 28D of the Customs Act, 1962. The Commissioner (Appeals) has, inter alia, held that the Original Authority has not examined the legal requirements i.e., Section 27(2)(a) of the Customs Act, 1962. He also held that under Section 28D of the Customs Act, unless the contrary is proved by the claimant, it is deemed that burden of duty is transferred to the buyer of the goods. 3. Further, after going through the submissions of the Appellants and the documents viz., CA Certificate, the Commissioner (Appeals) held that Appellants have failed to submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity in the OIA and has also pointed out that in view of the provisions of Sec.28D, unless contrary is proved the Appellant would be deemed to have passed on the full incidence of such duty and that the principle of unjust enrichment is rightly invoked in the facts of the case. 6. Heard both the sides. 7. The short question for determination in the facts of the case is whether principle of unjust enrichment is applicable or otherwise and if so, whether Appellants have passed the bar or not. It is an admitted fact that the Original Authority has granted the refund based on this Tribunal s Judgment cited supra, without examining the same from the angle of unjust enrichment as provided under the Customs Act, 1962, against which the Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, considering the fact that Appellants tried to submit the CA Certificate to Commissioner (Appeals) at appellate stage, which could not be submitted due to delay of few days and the fact that there has not been any occasion for them to defend their claim of not having passed the incidence of duty, so as not to be hit by the principle of unjust enrichment before the Original Authority, I find much merit in the arguments advanced by the learned Advocate for the Appellant. They have adduced a CA Certificate in support of their not having passed on the incidence. They have also submitted that the said amount was shown as Taxes/duty recoverable in their Books of Account. 10. It is also noted that in impugned OIA, the Appellate Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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