ORDER
T.K. Jayaraman, Member (T)
1. This appeal is against the OIA No. 73/2002-Cus., dated 16-10-2002.
2. The facts of the case are as follows :
The appellants imported Ethylene Oxide Sterilizer Unit on payment of duty. However, they found out that the item is exempted from Customs Duty vide Notification 23/98-Cus., dated 2-6-1998 (Sl. No. 24 List 23 Item 10). Therefore, they filed a refund claim for the refund of the amount wrongly paid. The Deputy Commissioner (Refunds) held that the refund claim is within time and not hit by unjust enrichment. However, he came to the conclusion that the imported goods are not covered by the exemption Notification. Consequently, the refund claim was rejected. However, the appellants appealed to the Commissioner (Appeals). The Commissioner (Appeals), in the impugned order, elaborately discussed the function of the equipment by referring to various technical literature and came to the conclusion that the imported equipment is entitled for exemption under the Notification. Hence, the appellants are entitled for a refund. However, he credited the refund claim to the Consumer Welfare Fund on the grounds of unjust enrichment. The appellant strongly challenge the findings of the Commissioner (Appeals).
3. Shri K.N. Raghavan, the learned Advocate appeared for the appellants and Shri R.N. Vishwanath, the learned SDR for the Revenue.
4. We have considered the records of the case carefully. The original authority has given a finding that the refund claim is within time and not hit by unjust enrichment. This finding of the original authority that the claim is not hit by unjust enrichment has not been appealed against by the Revenue. In the Commissioner (Appeals)’s order, there is no detailed finding as to how the refund claim has been hit by unjust enrichment. In any case, the entire OIA discusses only the entitlement of the appellant for the refund in terms of the Notification. There is also no basis when the Commissioner (Appeals) observes, “the appellants have not been able to show that the burden of duty has not been passed on directly or indirectly to another person”.
5. As regards unjust enrichment, the original authority, in Para (iii) of his findings, has mentioned that the appellant has furnished a Certificate issued by the Chartered Accountant wherein it is certified that the Ethylene Oxide Sterilizer is a capital item which is duly capitalised in the books of Accounts; that the whole of the expenditure including the Customs duty, is borne by the company; that the whole or part of the expenditure is neither charged to nor recovered from any customer or any party or any manufacturer as the sterilizer was installed in the plant premises for captive use. On a very detailed examination, he has come to the conclusion that the refund claim is not hit by unjust enrichment. The Commissioner (Appeals), while passing the impugned order, has completely ignored the findings of the Original authority. If the findings of the original authority are not correct, it should be shown with justification and proper reasoning. A sweeping statement saying the claim is hit by unjust enrichment shows non-application of mind. In view of the above observations, we hold that the refund claim is not hit by unjust enrichment. We allow the appeal with consequential relief, if any.
Operative portion of the order already pronouced in open court on conclusion of the hearing