The claim of the assessees for refund of the export duty paid on cashew nut kernels during the period 26.9.2006 to 30.11.2006 under 114 shipping bills has been rejected on the ground that the importer has passed on the incidence of duty paid by him to the buyer the claim has been sanctioned on merits but the amount has been directed to be credited to the consumer welfare fund under the provisions of Section 27(2) of the Customs Act, 1962.
2. I have heard both sides. I find merit in the submission of the assesses that refund of export duty is covered by Section 26 of the Customs Act which reads as under:-
Refund of export duty in certain cases:- Whereon the exportation of any goods any duty has been paid, such duty shall be refunded to the person by whom or on whose behalf it was paid, if -
(a) the goods are returned to such person otherwise than by way of resale;
(b) the goods are re-imported within one year from the date of exportation; and
(c) an application for refund of such duty is made before the expiry of six months from the date on which the proper officer makes an order for the clearance of the goods.”
The mechanism for testing such claims on the anvil of unjust enrichment has been incorporated only in Section 27 and not in Section 26. The SDR s reliance upon Tribunal’s decision in Commissioner of Customs, Bangalore Vs. Ken Agritech Pvt. Ltd. - 2004 (175) ELT 227 holding that the provisions of Section 27 of the Customs Act, 1962 relating to refund of duty of customs are also applicable for refund of cess paid on export, has overlooked the fact that the refund of export duty is covered under the provisions of Section 26 and not under the provisions of Section 27 of the Customs Act, 1962. In this view of the matter I hold that the assessee is not required to establish that he has not passed on the incidence of duty to any other person, set aside the impugned order and allow the appeal.