Customs, Excise and Gold Tribunal - Delhi
Alang Ship Breakers Ltd. vs Commissioner Of C. Ex. on 10 September, 2003
Equivalent citations: 2003(158)ELT322(TRI-DEL)
ORDER
K.K. Usha, J. (President)
1. The issue raised in this appeal at the instance of the assessee is whether its application for refund of duty paid under protest can be denied on the ground of principle of unjust enrichment. It is not disputed that pursuant to the order passed by the Commissioner of Central Excise (Appeals), Ahmedabad, dated 8-2-2000 the appellant is entitled to refund of excess duty paid. The appellant is engaged in the activity of ship breaking. The Commissioner (Appeals) took the view that the appellant was liable to pay duty only on the revised value of the vessel. After giving detailed directions as to how basic duty, surcharge, CVD and Special Additional Duty to be computed, the Commissioner (Appeals) concluded by stating that 'the appellants shall be refunded the differential amount of duties, the difference being in the price of the vessel, the price of the vessel shall be taken as per the revised memorandum of agreement, dated 16-7-99'. The lower authority was directed to work out the amount of difference between the duties paid and payable and refund the excess to the appellants.
2. The appellant initially made an application for refund of Rs. 44,75,044/- which was later restricted to Rs. 7,77,785/-. The refund claim was rejected by the original authority for the reason that the appellant could not prove by producing any documentary evidence that they had not passed on the duty burden on their customer. On appeal the Commissioner (Appeals) under the order impugned affirmed the above finding.
3. It is true that before the lower authorities the assessee put forward a contention that the excess duty was paid under a provisional assessment. But it was not able to satisfy the authorities that the assessment was at any time provisional. In the appeal before us the learned counsel for the appellant pointed out that the duty was paid under protest and therefore, applying the ratio of the decision of the Supreme Court in Sinkhai Synthetics and Chemicals v. CCE - 2002 (143) E.L.T. 17 (S.C.) the appellant is entitled to refund without being hit by the bar of unjust enrichment. The learned DR contended that there is nothing on record to show that the assessee had paid the duty under protest. We find that the above contention does not seem to be correct. The order passed by the Commissioner (Appeals), dated 8-2-2000 under which the appellant was held entitled to refund would show that the appellant had paid Customs duty of Rs. 2,10,63,731/- under challan, dated 13-8-99 under protest. A copy of the letter, dated 13-8-99 addressed by the appellant to the Deputy Commissioner, Bhavnagar is produced before us. This would also show that they were depositing the duty under protest.
4. The factual position being as above, the contention raised by the appellant on the basis of the decision of the Supreme Court in Sinkhai Synthetics is only to be accepted. We hold that the appellant is entitled to refund without being hit by the bar of unjust enrichment. The order impugned is, therefore, set aside and the appeal stands allowed. There will be a direction to the respondent to make the refund within a period of 10 weeks from the date of receipt of copy of this order.