2009 (11) TMI 813 - AT - Customs

Summary

Issues:
1. Appeal against cash refund granted to respondent.
2. Claim of unjust enrichment due to duty burden passed on.
3. Reliability of Balance Sheets as evidence.
4. Burden of proof under Customs Act.

Analysis:
1. The appeal was filed against the cash refund granted to the respondent by the lower appellate authority. The respondent did not appear for the hearing and did not wish to be personally heard. The department argued that the respondent failed to prove that they had not passed on the duty burden to their buyer, M/s. Century Enka Ltd., leading to a claim of unjust enrichment.

2. The lower appellate authority had ruled in favor of the respondent based on the argument that the price of the goods before and after import remained the same. However, the learned SDR cited precedents to counter this argument. The Tribunal referred to the case law of S.R.F. Ltd. v. Commissioner of Customs, Chennai and Commissioner of Central Excise, Mumbai-II v. Allied Photographics India Ltd., emphasizing that uniformity of price does not automatically prove that duty burden was not passed on.

3. The reliability of the Balance Sheets presented by the respondent was questioned. The Balance Sheets were from a period long after the imports, which raised doubts about their relevance as evidence. The absence of Balance Sheets from the relevant period prior to the settlement of the classification dispute further weakened the respondent's case.

4. The Tribunal found merit in the arguments presented by the learned SDR. It was noted that the lower appellate authority's decision was primarily based on the uniformity of prices before and after import, which was not sufficient evidence to prove that the duty burden had not been passed on. The respondent failed to provide additional evidentiary materials to support their claim, as required under Section 27 read with Section 28D of the Customs Act. Consequently, the Tribunal set aside the lower appellate authority's decision and allowed the appeal in favor of the department.