Ashok Jindal

The appellant has filed this appeal against the impugned order wherein the refund claim has been rejected by the Commissioner (Appeals).

2. Brief facts of the case are that the appellant has filed a refund application for refund of the additional duty of customs under Notification No.102/2007-Cus dated 14.09.07 being SAD paid on the goods imported by them. The original adjudicating authority rejected their refund claim on the premise that the appellant has not produced the relevant documents in support of their claim and the importer could not discharge the burden of proof cast on them that the amount in respect of which the refund claimed has not been passed on to any other person. The said order was challenged by the appellant before the Commissioner (Appeals) who in turn rejected their claim on the ground that the SAD was not paid in cash, therefore their claim is not maintainable. Aggrieved by the said order, the appellant is before us.

3. Shri T. Vishwanathan, learned Advocate appearing for the appellant submitted that as per General Exemption No.103 goods are exempted if there is a debit made in their Duty Entitlement Pass Book Scrip same amounts to payment of duty which has been clarified by the Board Circular No. 6/2008-Cus dated 28.04.2008 wherein the board has clarified that in case of 4% CVD having been paid through DEPB scrip where refund could be paid by cash, it is clarified that instead of refunding the duty in cash, the amount eligible for refund should be recredited on the relevant DEPB Scrip. Therefore, if goods are exempted against DEPB, that will amounts to payment if the same is debited in the DEPB Scrip. Therefore, he submitted that the impugned order be set aside. He also relied on the order passed by the Deputy Commissioner of Customs in their own case vide order No. 455/RKS/DC/Refund (Exp)/09-10 dated 21.12.2009 and Tanfac Industries Ltd. vs. CCE - 2009 (235) ELT 103 (Tri. Chennai).

4. On the other hand the learned DR reiterated the impugned order.

5. Heard and considered the submissions made by both the sides.

6. In this case the appellant has filed a refund claim under Notification No. 102/07-Cus. As per the said Notification, if the importer has paid SAD at the time of import, refund of the same can be available to the assessee if he is able to prove that they have discharged the liability of Service Tax/VAT and burden of SAD has not been passed on the buyers. In this case, the adjudicating authority has rejected the refund claim holding that the appellant has failed to pass the bar of unjust enrichment but the Commissioner (Appeals) while entertaining the appeal has gone beyond the grounds taken by the appellant in appeal and held that payment of duty through DEPB scrip amounts to exemption and, therefore, the appellant cannot be entitled for claiming the benefit under Notification No. 102/2007. As clarified by the Board’s Circular No. 06/2008 dated 28.04.2008, it is clear that if SAD has been debited to DEPB Scrip and thereafter the assessee has discharged the liability of ST/VAT, the assessee is entitled for refund. Therefore, we do not find any merit in the impugned order and set aside the impugned order. We find that the Commissioner (Appeals) has not dealt with the issue of bar of unjust enrichment. The matter needs examination at the end of Commissioner (Appeals). Therefore it would be in the interest of justice to remand the matter back to the Commissioner (Appeals) to pass the or

der on merits after considering the issue of unjust enrichment. It is pertinent to mention here that the Commissioner (Appeals) shall give reasonable opportunity of being heard to the appellant to present their case and to pass the order as per law within 30 days on receipt of this order. The appellant shall co-operate in the proceedings. 7. Appeal is disposed of in the above terms.