2023 (1) TMI 111 - AT - Customs

Tribunal orders refund for mis-declared alcohol, rejects unjust enrichment claim.

The Tribunal upheld the order directing the payment of Rs.10,95,224 to the appellant as a refund for mis-declared alcoholic beverages. The department's ... Rejection of refund claim - failure to show that the burden of duty has not been passed on to the respective buyers - principles of unjust enrichment - HELD THAT:- The amount of Rs.1,08,54,152/- was the amount deposited by the appellant pursuant to the confirmation of differential duty demand. The moment, the said demand was set aside by this Tribunal, the amount deposit with the department was not the amount of duty but was the revenue deposit to which the assessee/respondent was entitled for the refund. There is no dispute to this fact even by the original adjudicating authority. Major amount of the refund claim i.e. Rs.97,58,928/- out of Rs.1,08,54,152/- was sanctioned by the original adjudicating authority itself. The rejection for the balance amount has been re-adjudicated by Commissioner (Appeals) vide the order under challenge who while appreciating the C.A. Certificate and audited balance sheets produced by the assessee/respondent has concluded that there is no evidence to show that the burden of differential duty has been passed by the respondent to the prospective buyers. The Mumbai Bench of this Tribunal in another case of COMMISSIONER OF C. EX., PUNE-I VERSUS DGP HONODAY INDUSTRIES LTD. [2014 (5) TMI 1096 - CESTAT MUMBAI] has also held that where the assessee/respondent through the certificate issued by Chartered Accountant and the Balance Sheet have shown that the amount in question is receivable from the department. The bar of unjust enrichment cannot be applied upon such assessee - there are no reason to differ with these findings, specifically for the reason that there is no documentary evidence on record to falsify the Chartered Accountant Certificate. The observations of review order are therefore opined to be the result of mere presumption and surmises. The department’s appeal stands dismissed. Issues:- Appeal against rejection of refund for an amount- Mis-declaration of branded alcoholic beverages- Differential duty proposed for recovery- Confiscation of seized goods- Refund claim filed by the respondent- Rejection of refund for a specific amount- Review order challenging the refund- Chartered Accountant Certificate error- Burden of duty incidence on the appellant- Evidence provided by the appellant- Unjust enrichment and burden of proofAnalysis:1. The appeal was filed by the department against the rejection of a refund amount of Rs.10,95,224 directed to be deposited under the Consumer Welfare Fund. The appellant was engaged in the sale of alcoholic beverages and imported liquor, which was mis-declared as a 'mix stock lot of Alcoholic Beverages.' A differential duty of Rs.1,08,54,152 was proposed for recovery due to this mis-declaration, along with penalties and confiscation of goods. However, the Tribunal set aside the duty demand in a previous order.2. Subsequently, the appellant filed a refund claim for the duty amount deposited. The original adjudicating authority sanctioned a partial refund but rejected Rs.10,95,224, stating that the burden of duty had been passed on to buyers. The Commissioner (Appeals) allowed the refund for the balance amount, leading to a review order by the department challenging the Chartered Accountant Certificate's accuracy.3. The department argued that the appellant failed to prove that the burden of duty was not passed on, highlighting the insufficiency of the C.A. Certificate. On the other hand, the appellant contended that the C.A. Certificate and audited balance sheets were sufficient evidence to show no unjust enrichment. The Tribunal observed that the appellant was entitled to the refund as there was no evidence of passing on the duty burden.4. Referring to precedents, the Tribunal emphasized the importance of the C.A. Certificate and balance sheets as positive evidence in determining unjust enrichment. The Tribunal upheld the order under challenge, dismissing the department's appeal and directing the payment of Rs.10,95,224 to the appellant instead of crediting it to the Consumer Welfare Fund.5. In conclusion, the Tribunal found no merit in the department's arguments, supporting the appellant's claim for the refund based on the evidence provided, and emphasizing the significance of positive evidence in cases of unjust enrichment.