Refund of anti-dumping duty can be claimed without challenging assessment, and unjust enrichment is defeated by proof of non-passing on.

Refund of anti-dumping duty may be claimed without separately challenging the Bills of Entry assessment where the levy has been withdrawn and the statute permits refund of duty borne by the assessee. The doctrine of unjust enrichment is avoided when the claimant produces accounting records and a Chartered Accountant certificate showing that the duty was treated as recoverable and not included in production cost. On that basis, the refund becomes admissible and consequential relief follows.

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Issues: (i) Whether refund of duty could be claimed without challenging the assessment of the Bills of Entry; (ii) Whether the refund claim was hit by the doctrine of unjust enrichment.

Issue (i): Whether refund of duty could be claimed without challenging the assessment of the Bills of Entry.

Analysis: The refund claim arose under Rule 21 of the Customs Tariff (Identification, Assessment & Collection of Anti Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1975 after the anti-dumping notification was withdrawn. Relying on the principle applied under Section 27(2) of the Customs Act, 1962, the duty borne by the assessee was held refundable even though the assessment order on the Bills of Entry had not been separately challenged.

Conclusion: The appellant was entitled to maintain the refund claim without first challenging the assessment.

Issue (ii): Whether the refund claim was hit by the doctrine of unjust enrichment.

Analysis: The appellant produced balance-sheet material showing the duty as recoverable and also produced a Chartered Accountant certificate stating that the anti-dumping duty did not form part of the cost of production of the final product. On that basis, the burden of showing that the duty had not been passed on was treated as discharged.

Conclusion: The bar of unjust enrichment did not apply and the refund was admissible.

Final Conclusion: The refusal of refund was unsustainable and the appellant succeeded in obtaining refund relief with consequential benefits.

Ratio Decidendi: Refund of duty can be granted without separately challenging the assessment where the statute permits refund of duty borne by the assessee, and the doctrine of unjust enrichment is overcome by evidence showing that the duty incidence was not passed on.

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