The accounting of duty as an expenditure in a company's financial statements is not conclusive evidence of unjust enrichment, and under Rule 21(3) of the ADD Rules, 1995, the department is mandatorily required to refund provisionally collected ADD upon its withdrawal.

In this second round of litigation, appellant has assailed the legality of the rejection of refund order passed by the Commissioner (Appeals) sought against refund of Anti-Dumping Duty (ADD), 1995 that was mandatorily required under Rule-21 Sub-Rule 3 of the ADD Rules, to be refunded if provisional imposition of duty was to be withdrawn subsequently, without being confirmed.

2. Factual aspect of the case that gives rise to this appeal is that in respect of nine Bills of Entry filed for importation of Copper Clad Laminates between the period 19.09.2003 and 22.01.2024, when ADD was provisionally imposed and was subsequently withdrawn/rescinded on 22.01.2004. A total amount of Rs. 27,51,395/- was paid by the appellant. It did wait about a year for such refund of the duty as per Rule-21 sub-rule-3 but Respondent had not followed the Rule. Appellant, thereafter, had filed refund application under Section 11B of the Central Excise Act but that was rejected on the ground of being hit by unjust enrichment and the only justification available in the first and second round of litigation for such rejection was that the said amount was shown in the Appellant’s Profit & Loss Account as expenditure and not an amount receivable. Appellant is before this Tribunal challenging the legality of the said order after the direction contained in the order passed by this Tribunal in the first round of litigation was not duly followed.

3. I have heard from both the sides and perused the case record. Vide order passed by the Tribunal on dated 17.03.2017, the following direction was given while remanding the matter back for re-adjudication;

I find that only issue involved is unjust enrichment in respect of refund claim filed by the appellant against the payment of Anti Dumping Duty. Both the lower authorities held that the incident of duty has been passed on only on the basis that duty has been accounted in Profit and Loss Account. I completely disagree with the said contention for the reason that only on the basis of duty amount accounted for in profit and loss account alone is not conclusive that the incidence of duty has been passed on. Appellant submitted before the Commissioner (Appeals) that opportunity may be given to explain their case on the basis of various documents despite amount accounted in profit and loss account, incidence of duty has not been passed on. I do not find any reason for denial of this request as the same will not cause prejudice to the Revenue as it is a case of refund claim. It is settled law that every litigant should be given ample opportunity for defending their case. I therefore, of the view that appellant should get one more opportunity to substantiate their case that the incidence of duty has not been passed on.

(underlined to emphasise)

In furtherance of the said remand proceedings Refund Sanctioning Authority-cum-Adjudicating Authority passed his order on dated 21.09.2017, the operating portion of which reads as follows;

“ In view of direction by the Hon’ble Tribunal the importer was given sufficient time to submit documents to prove their contention that no incidence of duty was passed on to the buyers of imported goods. I find that the importer has orally repeated the arguments which were earlier made before former Adjudicating Authority in this regard. The importer has not submitted any document to prove their contention. On going through C.A. certificate dated 18.12.2004, which was submitted by importer before former Adjudicating Authority, it i