Page 158 - ELT_2nd_15th April 2020_Vol 372_Part

204 EXCISE LAW TIMES [ Vol. 372

ability of such documents in their office. However regarding copy of rele-
vant ledgers A/c indicating the custom duty paid against Bill of entry, for
retrieving the ledger account and copies of Challans, the Central Account
Team and Cash & Bank (PCS) Team of Basin Finance, Vadodara, has made
out all efforts including through checking of the present record room as
well as old record room for several days and thereafter confirmed that rec-
ords were not traceable since the matter under consideration in more than
30 years old. Claimant requested to take into consideration the records
available with Customs Department for the purpose of refund of excess du-
ty paid. Undertaking dated 31-5-2018 to this effect is attached by the claim-
ant.
………..
46. I find that, the claimant had imported the goods in year 1986-87 and
subsequently filed revised claim on 12-9-1989, 14-9-1989 and 15-9-1989. I
further find that, the claimant had neither submitted documentary evidenc-
es required to prove Unjust Enrichment at the time of submitting revised
claim in the year 1989 nor submitted thereafter. Therefore, the claimant’s
say that the unavailability of records as it is old cannot be accepted as they
were not filed even in the year 1989. The claimant should have preserved
and submitted the respective documents to comply the mandatory proce-
dure as the claimant is required to prove that, he has really suffered the du-
ty incidence. He cannot be re-compensated for what he has not lost.
47. As per the Section 27, 28C and 28D of the Customs Act, 1962 and other
judicial pronouncements as mentioned above, the onus to rebut unjust en-
richment is on the claimant until and unless the claimant satisfies the Cus-
tom authorities with relevant documents, indicating the fact that they have
not passed on the duty to the customers, such a claim cannot be accepted.
Further Section 28C and D of the Act provide for price of goods to indicate
the amount of duty paid thereon and presumption that incidence of duty
has been passed on to the buyer. Therefore until the contrary is proved,
there is a presumption provided under the statute that the duty has been
passed on to the buyer and the claimant i.e. M/s. ONGC Ltd. have not suc-
ceeded in rebutting the presumption. The claimant has not led any suffi-
cient and satisfactory evidence to prove that the burden of duty incidence
has not been passed on; therefore they are not eligible for refund on count
of unjust enrichment.
………
:ORDER:
(i) I sanction and order to credit the amount of
Rs. 5,41,82,641/(Five Crore Forty One Lakh Eighty Two Thou-
sand Six Hundred Forty One Only) claimed by M/s. Oil and
Natural Gas Corporation Limited, Head Geophysical Services,
Western Onshore Basin, Makarpura Road, Vadodara-390009,
to the Consumer Welfare Fund under Section 27(2) of the Cus-
toms Act, 1962.
(ii) I reject interest amount of Rs. 17,03,05,689.63 claimed by M/s.
Oil and Natural Gas Corporation Limited, Head Geophysical
Services, Western Onshore Basin, Makarpura Road, Vadoda-
ra-390009.
EXCISE LAW TIMES  15th April 2020  174