Order Date – 24 January 2024

Parties: M/s. Cochin Shipyard Ltd Vs Commissioner of Customs

Facts –

• The Appellant, M/s. Cochin Shipyard Ltd, was allowed by the Commissioner (Appeals) the benefit of Notification No.21/2002 dated 01.03.2002 for duty paid on imported raw materials and parts that were utilised in the manufacture of dredgers.
• The refund claim filed by the appellant was rejected on the ground that the documents filed along with the refund claim clearly establish that the incidence of duty  was passed on to the buyer i.e., Chennai Port Trust who had informed the reimbursement of duty to the appellant. Accordingly, the amount rejected was credited to the consumer welfare fund and the claim was hit by the doctrine of unjust enrichment.

Issue –

• Whether the appellant has passed on the duty burden to his buyer?

Order –

• The Tribunal observed that the appellant himself admits to the fact that the Chennai Port Trust, their buyer had advanced the customs duty to the appellant for discharging their duties on the dredger imported by them. The Chartered Accountant has also certified that customs duty was paid by Chennai Port Trust.
• As per Section 27 (2) (a) the appellant will be eligible for duty and interest, if any, paid by the importer, if he had not passed on the incidence of such duty and interest, to any other person; and in the present case it is obvious and admitted fact that duty burden was passed on to the buyer.
• On unjust enrichment, relying on the decision of the Hon’ble Supreme Court in the case of Union of India Versus Pesticide Pvt. Ltd. 2000 (116) E.L.T. 401 (S.C.) dated 4-2-2000 observed that it is a settled that unless and until the importer proves that incidence of duty has not been passed on to the buyer, the question of refund does not arise. 
• The Appeal is dismissed.