ORDER
Jeet Ram Kait, Member (T)
1. This appeal is directed against the order in appeal No. 75/2001 dated 6th December, 2001, issued on 10th December, 2001, by which the learned Commissioner of Customs (Appeals), Airport Mumbai has upheld the order of the lower authority. The lower adjudicating authority has sanctioned the refund under Section 27 of the Customs Act, 1962 and directed the same to be credited to the Consumer Welfare Fund since the appellants failed to produce the evidence that the incidence of duty has not been passed on to any other person and thus, the lower adjudicating authority has held that the doctrine of unjust enrichment is applicable in this case, and this finding of the lower authority has been upheld by the learned Commissioner(Appeals) in the impugned order.
2. The brief facts of the case are that the appellants had filed a claim for refund on the ground of wrong declaration of currency i.e. to say US $ instead of French Francs. They have produced proforma invoice, purchase order in support thereof. He further submits that they have submitted Chartered Accountant Certificate and copies of challans showing supply relating to the same part numbers. The lower authority has held that the refund claim is admissible on merits. He further found, during the course of hearing, that the goods imported by them were partly sold and partly used in their production. The lower adjudicating authority has held that the challans produced cannot be co-related with the subject bill of entry and no invoice relating to the sale of the goods has been produced by the appellants. They had, therefore, failed to produce any evidence as per Section 28-C of the Customs Act, 1962. Therefore, as per Section 28-D, it was presumed that the incidence of duty paid in excess has been passed on to their customers and the evidences submitted by the importer were not considered as sufficient proof against unjust enrichment. It was in this background, the lower adjudicating authority had sanctioned the refund amount of Rs. 9,20,170/- but ordered that the same shall be credited to the Consumer Welfare Fund. This order of the original authority was confirmed by the Commissioner (Appeals) by the impugned order who also found that the adjudicating authority had rejected the refund claim on the ground that the appellants has not fulfilled the condition as laid down in Section 27 and Section 28-C of the Customs Act, 1962 wherein the appellant has to produce the documentary evidence as proof against unjust enrichment. It was also observed by the learned Commissioner (Appeals) that the adjudicating authority has in fact sanctioned the refund under Section 27 of the Customs Act, 1962 and directed the same to be credited in the Consumer Welfare Fund since the appellant failed to produce the evidence of unjust enrichment. It was in this background, the learned Commissioner (Appeals) was also of the opinion that the order passed by the lower authority was legal and proper and he was not inclined to interfere with the order passed by the lower authority and thus rejected their appeal. Aggrieved by the impugned order, the appellants have come in appeal before the Tribunal on the ground that the Commissioner (Appeals) has errored in rejecting the appeal and therefore, the order passed by him is liable to be set aside. They also submitted that the order passed by the Commissioner (Appeals) does not contain any reason whatsoever and therefore, is non-speaking order, in gross violation of principles of natural justice and hence liable to be set aside. They further submitted that the order passed by the Commissioner (Appeals) reveals total non-application of mind since the Commissioner Appeals) has not considered the submissions made by the appellants including the decision of the Hon’ble Tribunal in the case of Hindustan Fertilizers Corporation v. CC reported in [1993 (63) ELT 648] which is directly and squarely covering the issues involved in the present case. They also submitted that the Commissioner (Appeals) has failed to appreciate that the present case is covered by Section 154 and 149 of the said Act and therefore, the provisions of Section 27 of the said Act are not applicable.
3. Appearing on behalf of the appellants Shri Naresh Thacker, learned Advocate submitted that they had filed the refund claim in time and they should have been given refund claim. He also submitted that their case is covered under the provisions of Section 149 and 154 of the Customs Act 1962 and the adjudicating authority should have suo-moto amended the documents. However, it was fairly conceded by the learned Advocate that they have not made any request for amendment of the till of entry and no request for change in foreign exchange rate which was by mistake quoted as US $ instead of French francs. The learned Advocate also invited my attention to the provisions of Section 154 of the Act ibid wherein it has been provided that clerical or arithmetical mistake in the order can be done by the proper officer. The learned Advocate also submitted that the provisions of Section 27 are not applicable in their case and the refund should have been suo-moto granted to them. In this connection, he relied on the judgment of the CEGAT East Zonal Bench, Calcutta in the case of Hindustan Fertilizer Corporation v. CC reported in [ 1993 (63) ELT 648] wherein it was held that the refund arising out of clerical or arithmetical error, wherein excess payment of duty by the importer had been made due to wrong calculation and such arithmetical error can be corrected by the proper officer under the provisions of Section 154 of the Customs Act ibid and the provisions of Section 154 are independent of Section 27 ibid.
4.In that case, the matter was remanded, as the issue was not examined under Section 154 by the lower authority. The learned Advocate also submitted that since they have submitted a Chartered Accountant Certificate, they have satisfied that the bar of unjust enrichment is not applicable to the facts of their case. The Advocate also invited my attention to the judgment rendered by the Hon’ble High Court of Judicature at Bombay in the case of Keshari Steels v. Collector of Customs, Bombay reported in [2000 (115) ELT 320] wherein it was held that the refund arising out of correction of clerical or arithmetical error under Section 154 of the Customs Act, 1962 does not attract the provisions of Section 27 for the purposes of calculation of the limitation period. In view of the above submission, the learned Advocate submitted that this was only a clerical or arithmetical error and refund should have been granted and paid to them.
5. Appearing on behalf of the Revenue, the learned JDR Shri R.K. Chandan submits that the original authority and the appellate authority have sanctioned the refund claim by accepting the clerical/arithmetical error as provided under Section 154 of the Customs Act, 1962 although there was no written request from them for such correction at any time. It was after accepting the arithmetical error, the original authority found that they are entitled for refund and the refund was accordingly sanctioned by the original authority. He also submitted that the facts in the judgment rendered by the High Court of Judicature at Bombay in the matter of Keshari Steels v. CC Bombay [2002 (115) ELT 320] are distinguishable inasmuch as, for the arithmetical error, the time limit as prescribed under Section 27 of the Act was applied. He invited my attention to para 2. of the above judgment wherein the application for refund which was filed on 29th July, 1985 was rejected by an order dated 8th August, 1985 on the ground that the refund application was filed beyond the period of time as prescribed under Section 27 of the Act. Not only both the lower authorities but even the appellate Tribunal had dismissed their appeal on the ground that it was beyond the period of six months as prescribed under Section 27 of the act whereas in this case, not only the refund application has been admitted, even the refund has been sanctioned as the arithmetical error was found but the appellants did not produce any invoice, etc. or any proof other than the certificate from a Chartered Accountant that the burden of incidence of duty has not been passed on to any other person. The learned JDR also submitted that even the judgment of the Tribunal in the matter of Hindustan Fertilizers Corporation v. CC reported in [1993 (63) ELT 648] is not applicable to the facts of this case inasmuch as, it was held that the time limit under Section 27 is not applicable in such a case where refund is arising out of clerical/arithmetical error. He further submitted that in that case, the matter was remanded as the same was not examined under Section 154 by the lower authorities. Whereas these are not the facts in this case. The proper officer of the Customs has examined suo mote the clerical/arithmetical error as provided under Section 154 immediately on accept of the Refund claim and after finding that there was an arithmetical error in the bill of entry, sanctioned refund claim but credited the same to the Consumer Welfare Fund on the ground that the doctrine of unjust enrichment was applicable to the facts of this case. He also invited my attention to the judgment rendered by WRB Bombay in the case of CC Mumbai v. Eltech Enterprises [1999 (112) ELT 877] wherein it was held that the Chartered Accountant Certificate if not supported by relevant sales bills or documents relating to the placing or order and terms of supply; submission of chartered account certificate is not sufficient proof to show that burden of duty has not been passed on to any other person. He therefore, submitted that the impugned order may be sustained and their appeal may be rejected.
6. I have perused the records and heard both the sides. The appellants manufacture JG engines and the gaskets which were imported by them, have been partly used in their production schedule and partly sold to their customers. They had filed a refund claim on ground of wrong declaration of currency i.e. US $ instead of French Francs. Both the lower authorities found that the refund claim was admissible on merits. Therefore, the provisions of Section 154 of the Customs Act were taken contingence by the proper officer suo moto and refund was granted. The short question which arises for my consideration is whether the doctrine of unjust enrichment is applicable in this case. The appellants have submitted a Chartered Accountant certificate but without any supporting documents like sale invoice etc. to prove that the burden of incidence of duty has not been passed on to the consumer. I am of the considered opinion that the certificate by the Chartered Accountant without any supporting documents is not sufficient to show that the burden of duty has not been passed on to any other person and thus, the presumption as contained in Section 28-D of the Act ibid that incidence of duty has been passed on to the buyer is fully proved and doctrine of unjust enrichment is applicable in their case. The appellants therefore, have not discharged the burden. In this connection, 1 respectfully, followed the judgment rendered by the Tribunal WZB at Mumbai in the case of CC Mumbai v. Eltech Enterprises [1999 (112) ELT 877] wherein if has been held that the mere production of Chartered Accountant Certificate is not sufficient and such Chartered Accountant Certificate should be supported by sale bills or documents relating to placing order and terms of supply, etc. The lower authorities have rightly ordered the credit of such refund granted, to the Consumer Welfare Fund. I am also in agreement with the plea taken by the learned JDR that the facts in the judgment rendered in CEGAT in the matter of Hindustan Fertilizer Corporation v. CC supra and the facts in the judgment of the Hon’ble Bombay High Court in the case of Keshari Steels v. CC [2000 (115) ELT 320] are clearly (sic)to the facts of this case as in those cases, the refund claims were rejected on the ground that the refund claim was filed beyond the period of six months. It was therefore, held that the time bar as provided under Section 27 of the Act would not be applicable in the case of such arithmetical or clerical errors. Both the lower authorities have suo moto admitted the refund claim and also allowed the refund claim as admissible but credited the refund amount to the Consumer Welfare Fund as the doctrine of unjust enrichment was found applicable in their case and the presumption that incidence of duty has been passed on to the buyers under Section 28-D was found to be against them as they did not submit documentary proof to the original authority to satisfy him or to the lower appellate authority to satisfy him that the burden of incidence of duty has not been passed on to the buyer. The plea of the learned Advocate for the appellants cannot therefore, be countenanced. In view of the above facts and circumstances, I do not find any infirmity in the order passed by both the lover authorises and reject the appeal. It is ordered accordingly.
(Dictated and pronounced the Court)