BILCARE LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE appellant is in appeal against the impugned order wherein the refund claims has been rejected on the premise that appellant has not passed the bar of unjust enrichment. The brief facts of the case are that the appellant imported certain aluminium foils. At the time of importation,' the duty was payable at the rate of 35% as safeguard duty. Later on, after examination of the issue, the duty reduced to 30%. Therefore, the appellant filed refund claim of the 5% excess duty paid at the time of clearance of the goods. The refund claim was allowed by the Adjudicating Authority on being satisfied that the excess duty paid has been shown as receivable in the books of accounts and on production of Chartered Accountant certificate that the duty incidence has not been passed on the buyer and same is receivable from the customs. But, on appeal by the revenue before the Commissioner (Appeals), the refund claim was rejected on the premise that the Chartered Accountant certificate has merely stated that they are entitled to refund claim of difference between provisional and final safeguard duty. There is no mention in the certificate to whether the incidence of duty has been passed on the customer or not and no document has been produced by the appellant to satisfy that the customs duty has not been passed on the buyer. Aggrieved from the same, appellant is before me.

(2.) PERUSED the record and considered the submissions.

(3.) THE ld. C.A. appearing on behalf of the appellant submits that in case of safeguard duty there is no provision that bar of unjust enrichment is applicable. Therefore, the bar of unjust enrichment is not applicable to the facts of this case. In the alternative, it is submitted as the refund claim has been sanctioned within the same year, therefore, the question of showing the 'amount receivable in the balance sheet does not arise. He further submits that they have produced the extract of the books of accounts before the Adjudicating Authority and Adjudicating Authority has recorded the fact that duty burden has not been passed on the buyer. Therefore, the impugned order is required to be set aside.