Order Date – 01 June 2023

Parties: Pr. Commissioner of Customs Central Tax, Hyderabad Vs Sachdev Overseas Fitness Pvt Ltd and Nityasach Fitness Pvt Ltd

Facts – 

• The Respondent, Sachdev Overseas Fitness Pvt Ltd and Nityasach Fitness Pvt Ltd, was sanctioned refund on re-assessment of excess amount paid.
• The department contented that unless the amount is shown as receivables, it has to be presumed that the incidence of duty was passed on to their customers, and since they have claimed the same as “expenditure” in their Profit & Loss account and failed to recognize the refund as duty receivables for the said period in their Books of Account, the refund claim cannot be presumed to have passed the test of unjust enrichment.

Issue – 

• Whether, in the facts of the case, the doctrine of unjust enrichment was correctly applied or otherwise?

Order – 

• The Tribunal observed that in the present case, barring CA certificate, no other evidence has been produced by the Respondents before the Adjudicating Authority. As against this, the Department has clearly brought out certain evidence like the Respondents having not shown this amount as “receivables” in their books of account during the relevant time or not having produced any documents etc., as envisaged under Section 28C of the Customs Act.
• Thus, it is evident that they have treated the duty as an element of expenditure and therefore, forming part of the Profit & Loss account and not as receivables. It is also noted that they were aware that reassessment would lead to refund and they were also aware about the exact amount of refund which would be admissible to them on merits, and despite that they had not shown this amount as receivables in any of their books of account.
• Therefore, in the facts of the case, they have clearly not been able to clear the bar of unjust enrichment by not having produced sufficient evidence before the original authority.
• The reliance placed by the learned DR on the Ispat Industries Ltd case is squarely applicable in the present case. Thus, in the absence of any verifiable and positive evidence from the Respondents, the Original Authority has rightly granted the refund on merits but ordered for crediting it to Consumer Welfare Fund and the Order of the Commissioner (Appeals) is not correct and is liable to be set aside.
• Revenue appeal allowed.