9911796707
TMI Blog2003 (11) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... t of damage of the goods by reducing the value of the goods to the extent of 30%; that as a consequence of the said Order, the Appellants preferred a refund claim of Rs. 45,38,280.72 on 18-3-1988. The learned Advocate also mentioned that Collector (Appeals), under Order-in-Appeal No. 3161/88, dated 29-8-88, rejected their appeal for enhancing the abatement in value; that the Tribunal also vide Final Order No. 773/1991-A, dated 30-9-91 had held that the Department was justified in giving 30% reduction in value; that the Tribunal vide Miscellaneous Order, dated 8-9-92 directed the Collector to implement the Tribunal s Order, dated 30-9-91 within one month. 2.2 He, further, mentioned that the Collector (Appeals) set aside the Deputy Commissioner s Order dated 28-1-1988 in a separate proceeding on the appeal preferred by the Department vide Order-in-Appeal No. 627/92, dated 25-8-92; that, however, the Tribunal, vide Final Order No. 123/93-A, dated 14-6-1993 allowed the appeal filed by the Appellant, ordered that they were entitled for relief based on the 30% reduction in value and directed the Collector, Customs, Kandla to implement the Final Order dated 30-9-91 forthwith. 2.3 He a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -88; that after the decision of the Collector (Appeals) the challenge to the Order-in-Original dated 28-1-88 of the Deputy Collector allowing 30% reduction in value could not have any validity; that the Collector (Appeals) in his Order-in-Appeal dated 29-8-88 has held The lower authority has correctly granted rebate proportionately and this Order was not challenged by the Department and had become final, much before 19-9-1991; that the Review Order passed by the Collector on 27-1-89 was thus non est in the eyes of law. The learned Advocate relied upon Para 87 of the judgment in the case of Mafatlal Industries Ltd. v. UOI, 1997 (89) E.L.T. 247 (S.C.) wherein it has been held by the Supreme Court as under :- It is of course, obvious that where the refund proceedings have finally terminated in the sense that the period prescribed for filing the appeal against such order has also expired before the commencement of the 1991 (Amendment) Act (September 19, 1991), they cannot be re-opened and/or be governed by Section 11B(3) as amended by 1991 (Amendment) Act. 3.3 Reliance has also been placed on the decision in the case of Bajaj Auto Ltd. v. UOI, 2003 (151) E.L.T. 23 (Bom.) wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een finalised when the amended provisions of Section 27 came into force, the Appellants have to prove that the incidence of duty was borne by them. He relied upon the judgment in Mafatlal Industries case wherein it has been held that any and every claim for refund of excise duty can be made only under and in accordance with Rule 11 or Section 11B, as the case may be, in the forums prescribed by the Act . He mentioned that the Supreme Court has further held that no order of refund is to be made unless the claimant establishes that he has not passed on the burden of duty to others and no exception can be made for the refund claim arising as a result of decision in appeal/reference/writ petitions. The learned D.R. reiterated the findings of adjudicating authority who has given a specific finding that the Appellants had not produced any documentary evidence, such as correspondence between them and their buyers showing the reasons for giving the heavy discount on the sale of their final product, and they were also not able to produce the invoices pertaining to one month before and one year after the clearance/use of the imported materials in the factory. He also referred to the findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0%. The present issue before us is the refund of duty which has been paid by the Appellants in excess. As contended by the learned D.R. the refund of any duty is regulated by the provisions of Section 27 of the Customs Act. As per Section 27 the claimant for the refund has to establish that the incidence of duty has not been passed on by him to any other person. First proviso to Section 27(1) of the Act provides that where an application for refund has been made before the commencement of the Amendment Act, 1991, such application shall be deemed to have been made under amended sub-section and the same shall be dealt with in accordance with the provisions of sub-section (2) of Section 27. The Constitution Bench of the Supreme Court, in the case of Mafatlal Industries Ltd. (supra), has upheld the validity of amended Section 27 of the Customs Act. The Supreme Court has also upheld the retrospective effect. It has been held by the Supreme Court by majority that In the face of this proviso, it is idle to contend that sub-sections (1) and (2) of Section 11B do not apply to pending proceedings. They apply to all proceedings where the refund has not been made finally and unconditionally. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observe from the Adjudication Order that the Chartered Accountant s certificate simply mentions that as a result of contamination and poor quality of material extra manufacturing/process cost of about Rs. 90 lakhs had been incurred and the sales realisation from the PVC pipes was substantially lower than the price of prime quality pipe. This does not anyway indicate that the incidence of duty has not been passed on to their customers. The learned Advocate has relied upon the observation of the Supreme Court in Para 16 of the decision in the case of UOI v. Solar Pesticides Ltd. The said paragraph was dealing with the submissions made by the learned Counsel for the Respondents to the effect that Section 27 should be construed harmoniously with Section 28D of the Act and it was contended that the absence of presumption leads to inference that the provisions of unjust enrichment were not intended to apply to cases of captive consumption. The Supreme Court did not agree with these submissions and observed that Section 27 of the Act is, in a sense complete code by itself, dealing with the claim for refund of duty. The procedure provided by Section 27(1) is applicable in case of applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
