Full Judgment
2. Heard Shri P.K. Das, learned Advocate for the appellant company. He reiterates the grounds taken in the appeal. He has submitted a Certificate of the Manager of the appellant company as also a Certificate of the Chartered Accountant. He further submits that the Chartered Accountant has certified that a sum of Rs. 13,18,957.22 (Rupees thirteen lakh eighteen thousand nine hundred and fifty-seven and paise twenty-two) is standing as a debit balance in the Account of Collector of Customs, Calcutta as on 31.03.1993 as per books of accounts of the appellant company. He also submits that the Commissioner (Appeals) discarded the Certificate given by the Chartered Accountant to the appellant company without verifying the contents therein. In view of this, he submits that the impugned Order may be set aside and their appeal be allowed.
3. Heard Shri Y.S. Loni, learned J.D.R. for the Revenue. He submits that the Commissioner (Appeals) has discussed elaborately in his findings about the Certificate furnished by the appellant company. He, further, submits that the Hon'ble Apex Court has held in the case of Union of India v. Solar Pesticide Pvt. Ltd. that principle of unjust enrichment applies to cases of captive consumption also.
4. I have heard both sides. I find that the Commissioner of Customs (Appeals) has elaborately discussed the 'Unjust Enrichment' issue. Para 4 of the Order passed by the Commissioner (Appeals) is reproduced below: 4. The appellant relied upon the unjust enrichment certificate furnished by their DGM. The legal provisions do not provide for admissibility of such certificate, unless it is supported by corroborative evidences, which are lacking in the present claim.
There is absolute Jack of evidence/costing data to show that the duty incidence under claim had not been passed on to the buyer of goods. The Annual Report (1992-93)/Schedule 5 does not reveal anything Scrutiny of records reveals that there is no evidence that incidence of duty had not been passed on by the appellant. Section 28D of the Act stipulates that every person who has paid the duty on any goods under this Act shall, unless is contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. Admittedly, the appellant could not produce any evidence and hence, there is no rebuttal against the presumption under Section 28D of the Act that the full incidence of duty under claim had been passed on to the buyers of goods, directly or indirectly. Following the ratio of above-mentioned decisions, it is held that the refund claim of the appellant is clearly barred by the principles of unjust enrichment. In that event, crediting of amount to Consumer Welfare Fund is legal and correct.
From this, it is clear that the appellant company could not produce any evidence that incidence of duty on imported goods has not been passed upon the buyers of the goods manufactured by the appellant company. The Certificate issued by the Chartered Accountant does not show any evidence that incidence of duty has not been passed upon the buyers.
The appellant company has failed to produce any evidence that incidence of duty has not been passed by them upon the buyers. In view of the findings given by the Commissioner (Appeals) above, I do not find any infirmity in his Order and he has correctly held that the Refund Claim of the appellant company is clearly barred by the principles of unjust enrichment.
4.1. As regards the claim for refund of interest filed by the appellant company, I agree with the finding of the Commissioner (Appeals) that it is not sustainable in law. Under the erstwhile provisions of the Central Excise Act, the interest is payable on the basis of duty amount calculated at the rate prevalent on the date of warehousing of goods.
Subsequent change in the rate of duty at the time of ex-bond clearance has no bearing on the interest amount initially paid by the appellant company. In view of this, I find that the impugned Order is correct in law. I uphold the same.