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TMI Blog2011 (8) TMI 939X X X X Extracts X X X X X X X X Extracts X X X X ..... /159/11 to C/166/11 and C/1258/09 whereas the impugned order relates to only eight bills of entry. The Ld. SDR appearing for the department confirmed that Appeal bearing No.C/162/11 is withdrawn and, therefore, the same is dismissed as withdrawn. Further delay in filing appeals is condoned for the reasons stated therein. 3. The common issue involved in all these appeals is that the importer M/s. SNS Overseas Pvt. Ltd., had filed eight bills of entry vide bills of entry Nos.936394 dated 10/06/2209, 947578 dated 17/06/2009, 892965 dated 12/05/2009, 911412 dated 25/05/2009, 918169 dated 29/05/2009, 876216 dated 29/04/2009, 898720 dated 15/05/2009 and 943468 dated 15/06/2009 for import of aluminium foils classifiable under CTH No.7607.1999 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bundant caution. The Commissioner (Appeals), even before the reassessment was done by the Customs authorities, decided the appeals and set aside the assessment of provisional safeguard duty and also ordered that the same be refunded to the respondent under the provisions of Section 8C of the Customs Tariff Act, 1975. The Commissioner (Appeals) further observed that the respondent had produced a certificate from the Chartered Accountant indicating that they have not passed on the burden of provisional safeguard duty imposed to their customers and, therefore, there is no question of unjust enrichment and, hence, the appellants are entitled to refund of entire duty paid. The appellate authority also observed that the respondent had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Customs Act, 1962, provisional assessment can be ordered only when the importer is unable to produce any documents or furnish any information necessary for the assessment of duty or the proper officer deems it necessary to subject any imported goods for any chemical or other test for the purpose of assessment of duty thereon or where the importer had produced all the necessary documents and furnished full information for the assessment of duty but the proper officer deems it necessary to make further enquiry for assessing the duty. In the instant case none of the above situation exists and, therefore, the question of assessing the duty provisionally and thereafter finalizing the same does not arise. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of investigation when the rate of safeguard duty is finally determined, the provisional assessment has to be finalized and, thereafter, the amount, if any, paid in excess has to be refunded to the importer. Therefore, the arguments of the respondent that there is no need for finalization of assessment in the case of provisional safeguard duty or reassessment of duty does not stand to any logic or reason. In the instant case when the reassessment proceedings were pending before the Asst/Dy. Commissioner of Customs, the importer appears to have filed appeals before the Commissioner (Appeals) as a matter of abundant caution. The lower appellate authority should have, in all fairness, waited for the finalization of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the safeguard duty and a finding has to be recorded by the assessing authority. 6.3 Further, the Commissioner (Appeals) have concluded that the respondents have borne the incidence of duty on the basis of a Chartered Accountant's certificate. A Chartered Accountant's certificate cannot be a conclusive proof of the fact that the duty incidence has not been passed on, even though it could be one of the evidences with respect to such a claim. The invoices issued by the importer to his buyers have to be necessarily seen to conclude whether the incidence of duty has been passed on or not. There is no mention in the impugned order whether any invoices were produced before the appellate authority or not nor is there any discussion in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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