M/S Vanick Oils & Fats Pvt. Ltd vs Cc, Amritsar

[Arising out of Order-in-Appeal No. 125-126/CUS/LDH/2008 dated 17.10.2008 passed by the Commissioner (Appeals), Customs & Central Excise, Chandigarh]

For Approval & Signature :

Honble Mr. Ashok Jindal, Member (Judicial)

Honble Mr. R.K. Singh, Member (Technical)

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of the order?

4. Whether order is to be circulated to the Department Authorities?

M/s Vanick Oils & Fats Pvt. Ltd. Appellant

Vs.

CC, Amritsar Respondent

Appearance:

Shri Naveen Bindal, Advocate - for the Appellant

Ms. Suchitra Sharma, D.R. - for the Respondent

Coram : Honble Mr. Ashok Jindal, Member (Judicial)

Honble Mr. R.K. Singh, Member (Technical)

F. Order No.51797/2015

Per R.K. Singh :

The appeal has been filed against the order-in-appeal dated 17.10.208 in terms of which the appellants refund claims in respect of 12 Bills of Entry filed between 14.2.2007 to 30.3.2007 totalling to Rs.26,98,570/- was rejected on merit as well as on the ground of unjust enrichment. The primary adjudicating authority had observed that the refund was admissible on merit but had rejected it on the ground of unjust enrichment.

2. The facts of the case are that the appellant imported hydrogenated vegetable oil and paid Nil basic customs duty and Nil CVD in terms of Notification No. 2 & 3/2007-Cus. They however paid additional custom duty of 4% ad. val. The refund claims were filed on the ground that additional Custom duty was unconditionally exempt in terms of Notification No. 20/2006-Cus. dated 1.3.2006 and was paid due to ignorance. The primary adjudicating authority found that the appellant was entitled to refund but it had not produced any evidence regarding absence of unjust enrichment and therefore refund amount was sanctioned and transferred to the consumer welfare fund. The Commissioner (Appeals), on the other hand, held that as the assessment order was not challenged by the appellant, refund was not admissible in view of the Supreme Court judgement in the case of Priya Blue Industries Ltd. Vs. CCE  2004 (172) ELT 145 (SC). The Commissioner (Appeals) further held that that the evidence produced by the appellant was also not sufficient to show the absence of unjust enrichment. The Commissioner (Appeals) thus rejected the refund claim on merit as well as on the ground of unjust enrichment.

3. The appellant has contended that the goods were unconditionally exempt from Additional Customs duty in terms of Notification No. 20/2006-Cus. and therefore they are entitled to refund without contesting the assessment in the light of judgement of Delhi High Court in the case of Aman Medical Products Ltd. Vs. CC, Delhi  2010 (250) ELT 30 (Del.). It stated that it had produced CAs certificate as well as balance sheet (under which the said amount is shown to be receivable from Custom deptt.) and thus discharged the burden to show that the burden of duty was not passed on.

4. The ld. DR contended that C.A. certificate is not good enough to rebut the presumption of unjust enrichment and additional evidence cannot be submitted at CESTAT stage.

5. We have considered the contentions of both sides. We find that the benefit of Notification No. 2 & 3/2007-Cus. dated 5.1.2007 had been extended to the appellant by the assessing officer himself and the Bills of Entry were assessed at Nil BCD and CVD. It is also a fact that once BCD and CVD were fully exempt or chargeable to Nil rate of duty, by virtue of Notification No. 20/2007-Cus. the additional Customs duty was fully exempt. In the case of Aman Medical Products (supra) which had considered the Supreme Court judgement in case of Priya Blue Industries (supra), it has been held that assessment order is not required to be challenged for claiming refund of higher duty paid by inadvertence without taking benefit of notification due to ignorance as at the time of assessment there was not contest or lis and hence there was no adversarial assessment order to be challenged and that non-filing of appeal against assessed Bill of Entry where there is no lis between importer and Revenue at the time of payment of duty will not deprive importer of his right to file refund claim. Thus, there remains no doubt that the refund is admissible on merit.

6. As regards the issue of unjust enrichment the appellant has produced CAs certificate to the effect that the burden of Additional Custom duty was borne by appellant and was not passed on. They had also produced the balance sheet where the amount has shown to be part of receivables, no additional evidence was being submitted as CESTAT stage. It has in effect been held in the case of Siddhi Vinayak Steel Vs. CC, Mumbai  2014 (302) ELT 448 (Tri.-Mumbai) and in the case of CC Mumbai Vs. Agro Impex  2014 (307) ELT 371 (Tri.-Mum.) and also in the case of SAIL Vs. CC, Chennai  2012 (284) ELT 212 (Tri.-Chennai) that when the amount is shown as receivable from Customs department and also supported by Chartered Accountant certificate that the burden has not been passed on, refund should be given to the assessee. In the appellant balance sheet there are Customs duty amounts which have been shown to be receivables from Customs department and CA certificate of the appellant having borne the burden were also submitted. Thus the appellant has discharged its burden to show absence of unjust enrichment.

7. In the light of the analysis above, we set aside the impugned order and allow the appeal.

(Ashok Jindal)

Member (Judicial)

(R.K. Singh)

Member (Technical)

RM

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