2003 (8) TMI 379 - AT - Customs

Summary

Issues:
1. Refund claim of duty on imported fabric.
2. Rejection of refund claim on grounds of unjust enrichment.
3. Consideration of certificates and documentary evidence.
4. Discrepancy in Chartered Accountant certificates.
5. Requirement to indicate customs duty in sale invoice.
6. Determination of whether duty was realized from customers.

Analysis:
The dispute in the present appeal revolves around the appellant's refund claim of duty amounting to Rs. 1,19,116 on polyester warp knitted fabric imported under a bill of entry dated 19-4-2002. The appellant contended that they overpaid duty by 8% ad valorem, as they paid 16% instead of the correct 8%. However, their refund claim was rejected citing unjust enrichment.

The appellant's representative argued that the authorities did not consider various certificates and documentary evidence proving that the duty element was not passed on to customers. The Chartered Accountant certificates showed different sale prices, with the first sale being from previous stock, not the imported fabric in question. The appellant maintained that the excess amount realized from customers was due to expenses and profit, not customs duty, and they sold the material below the landed cost inclusive of the higher duty paid, meeting the requirements of Section 28D of the Customs Act.

In response, the JDR contended that the certificates showing different duty amounts made them unreliable. Additionally, reference was made to Section 28C of the Customs Act, requiring customs duty to be indicated in the sale invoice, which was allegedly not done by the appellant.

Upon considering the arguments, the judge found merit in the appellant's explanation that the initial sale was from previous stock, supported by the Chartered Accountants' annexure. The appellant subsequently sold the entire quantity to another entity at a specific price per kg. The judge emphasized the need to compare the landed cost of the fabric with the sale value to determine if duty was realized from customers. As the Revenue failed to conduct this analysis, the matter was remanded to the Asstt. Commissioner for further assessment and a decision on the appellant's claim. Consequently, the appeal was allowed by way of remand.