2012 (5) TMI 330 - AT - Customs

Appellate Tribunal denies Coal cess refund due to lack of proof on non-utilization and unjust enrichment.

The Appellate Tribunal CESTAT, CHENNAI, rejected four appeals seeking a refund of Coal cess, as the appellants failed to prove non-utilization of credit ... Refund of the Coal cess - paid initially at the time of import which subsequently has been clarified to be not payable - unjust enrichment - held that:- the cess amount has been booked under the expenses and therefore, the same forms part of the cost of cement manufactured by the appellants. Hence, this certificate does not support the claim of the appellants that they have not passed on the extra duty to their customers as part of the price of cement manufactured by them. - refund rejected on the ground of unjust enrichment. Issues:- Entitlement to refund of Coal cess paid by the appellants- Proof of non-utilization of credit of such cess- Proof of non-passing on of the cess paid to customers- Interpretation of Rule 3 of the Cenvat Credit Rules, 2004- Justification for denial of refund based on unjust enrichmentAnalysis:The judgment by the Appellate Tribunal CESTAT, CHENNAI, involved four appeals addressing the issue of whether the appellants were entitled to a refund of Coal cess initially paid at the time of import, later clarified as not payable. The authorities had denied the refund on the grounds that the appellants failed to prove non-utilization of credit of such cess and non-passing on of the cess paid to customers. The Ld. Consultant argued that as per Rule 3 of the Cenvat Credit Rules, 2004, credit for Coal cess is not permissible, making the requirement for a certificate on non-utilization unnecessary.Regarding the second ground, the Ld. SDR confirmed that credit of coal cess cannot be availed, eliminating the need for proof of non-utilization. The judgment highlighted a Chartered Accountant's certificate submitted by the appellants in each case. The certificate revealed that the cess amount had been accounted for as an expense, forming part of the cost of cement manufactured by the appellants. This indicated that the extra duty had been passed on to customers as part of the product's price. Additionally, the absence of a balance sheet showing the extra duty as an outstanding receivable amount further supported the denial of refund based on unjust enrichment.The Tribunal concluded that the appellants' claim of not passing on the extra duty to customers was not substantiated, as evidenced by the treatment of the cess amount in their accounting practices. Consequently, all four appeals were rejected based on the findings related to the utilization of credit, passing on of the cess to customers, and unjust enrichment. The judgment was dictated and pronounced in open court, upholding the authorities' decisions to deny the refund amounts.