9911796707
TMI Blog2005 (12) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... er]. - The appellants had filed a refund claim of Rs. 45,330/- on the ground that by mistake the invoice value was taken in US$ instead of Canadian $ while calculating the duty. The refund claim was sanctioned by the Dy. Commissioner of Customs but he credited the amount to the Consumer Welfare Fund on the ground that the claimant had failed to substantiate that incidence of duty for which refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on to the third party or not. In the present case, the capital goods imported by the appellants are still with him, and he has not sold them in the market, therefore, question of passing on of incidence of customs duty to the buyer does not arise. The appellant has not passed on the burden of excess duty paid by him to the buyer and hence they are entitled to refund. In response to the hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VD was availed. 2. On behalf of the Revenue, it was pleaded that the Commissioner (Appeals) has rightly observed that the appellants have not placed any document on record to indicate that the amount claimed remains recoverable from the customers in any of their books of account including the balance-sheet of the relevant period. Section 28D of the Act places a clear onus on the appellants t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the machinery. I find that the issue has been decided by the Larger Bench of this Tribunal in the case of Toyo Engg. India Ltd. v. CC, Mumbai reported in 2004 (175) E.L.T. 793 (Tribunal-Mumbai), where it has been held that "the capital goods used by the appellants for setting up a plant are not goods which have been consumed in the manufacture of final products. In this factual background, the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellants and these are within the factory and these are not consumed in the factory. Therefore, the certificates submitted by them have to be accepted and the refund, instead of crediting to the Consumer Welfare Fund, is required to be given to the appellants.
4. I, accordingly allow the appeal with consequential relief.
Order dictated and pronounced in open Court on 5-12-2005 X X X X Extracts X X X X X X X X Extracts X X X X
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