2019 (4) TMI 448 - AT - Customs

Appellants Granted Refund for Countervailing Duty Paid Under Protest

The Tribunal held that the appellants had passed the bar of unjust enrichment as they paid Countervailing Duty (CVD) under protest, did not recover it ... Refund of CVD - rejection on the ground of unjust enrichment - N/N. 30/2004-CE dt.9.7.2004 - Held that:- It is a fact on record that the appellants have paid CVD and under protest and the letter of protest has not denied by the Revenue. Moreover, the invoice also confirms that they have not charged any CVD from the buyer. Moreover, it is also mentioned in the invoice itself that all duties of excise exempted vide Notification No. 30/2004-CE dt.9.7.2004 - further, the chartered accountant also certifies that the amount of CVD has not recovered from the customers and to that effect, the appellant has produced a certificate dt.25.03.2017 on record. Admittedly at the time of clearance of the imported goods, the appellants have paid CVD under protest as the said duty was not recovered from the customers evidencing invoiced issued by the appellants. Therefore, the appellants have passed the bar of unjust enrichment - Merely, the appellants have made debit entry in the Profit and Loss Account as expenditure and not shown in the balance sheet as dues recoverable from the department cannot be the reason to deny the refund claim for the reason that the appellants have not passed the bar unjust enrichment - the certificate issued by the chartered accountant certifying that the appellants have not passed the duty incidence to the customers. The appellants have passed the bar of unjust enrichment and they are entitled to claim refund of CVD paid under protest at the time of clearance of the imported goods - appeal allowed - decided in favor of appellant. Issues:Refund claim rejection based on unjust enrichment.Analysis:The appellants imported polyester blankets from China and paid Countervailing Duty (CVD) under protest. They later filed refund claims for the CVD paid. The dispute arose as the department rejected the refund claims, alleging that the appellants had not passed the bar of unjust enrichment. The key contention was whether the appellants had recovered the duty from the buyers or not.The appellant argued that they paid duty under protest and did not recover it from the buyers. They contended that the duty amount was debited in the Profit and Loss Account as expenditure, not shown as recoverable from the department. They relied on judicial pronouncements to support their claim of passing the bar of unjust enrichment. The appellant emphasized that they had obtained a favorable order from the Tribunal, indicating the recoverability of the amount from the department.The Revenue, on the other hand, supported the impugned orders rejecting the refund claims. The Tribunal considered the submissions from both sides. It noted that the appellants paid CVD under protest, as evidenced by the protest letter and invoices that did not charge CVD to the buyers. The chartered accountant certified that the duty amount was not recovered from the customers. The Commissioner (Appeals) also confirmed the recoverability of the duty amount after the Tribunal's favorable order.In its analysis, the Tribunal referred to precedents like the case of Yamuna Gases & Chemicals Ltd., where the Tribunal observed that not recovering duty from buyers indicated passing the bar of unjust enrichment. Additionally, the Tribunal cited the decision of the Bombay High Court in the case of Sandvik Asia Ltd., emphasizing that the treatment of the duty amount in the books of accounts did not affect the unjust enrichment analysis.Ultimately, the Tribunal held that the appellants had passed the bar of unjust enrichment as they paid CVD under protest, did not recover it from customers, and had supporting documentation from the chartered accountant. The Tribunal set aside the impugned orders, allowing the appeals and granting the appellants the refund of CVD paid under protest during the import clearance process.