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TMI Blog2011 (8) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... wa, Shri Mathew John, JJ. REPRESENTED BY : S/Shri L.B. Naraian and R.K. Hasija, Advocates, for the Appellant. Shri Sheo Naraian Singh, Jt. CDR, for the Respondent. [Order per : Mathew John, Member (T)]. This is a case where the Appellant had filed four refund claims during 1998 in respect of nylon tyre cord fabrics imported by them during 1997. These goods were used by the Appellant in their factory for manufacture of tyres. 2. The impugned claim for refund has been sanctioned but credited to Consumer Welfare Fund as per provisions of Section 27(2) of the Customs Act. The Appellant is aggrieved by such order and claims that the amount should be paid to them. 3. This matter is in second round of litigation. The last time when the matter came before the Tribunal, the matter was disposed of by order dated 1-12-2004 [2005 (184) E.L.T. 46 (Tri. - Del.)]. The operative part of the order is given below : 5. There is no dispute regarding the excess payment of the duty by the appellants. Their right to claim the refund of the excess paid duty had been accepted by the authorities below with a rider that they had passed on the incidence of duty to the consumers and as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of Commissioner (Appeals). 5. The evidences produced by the Appellant before the adjudicating authority were the following : (a) A certificate dated 28-1-2004 in respect of claim for Rs. 27,50,306/- and certificate dated 29-1-04 in respect of claim for Rs. 26,000/-; (b) Copy of Journal Voucher No. 215 dt. 31-3-99; (c) Copies of Trial balance as on 31-3-99 and March 2005; (d) Copies of price lists dated 20-11-97, 1-4-98 and 8-6-98; (e) Copies of invoices from plant for the period April to August 1998 along with sales invoice from depot to dealers for October and November 1998; (f) Copies of outstanding liabilities as on March 1999 and March 2005; (g) Material cost data per tyre for the month of April, July and Oct; (h) Statement showing the comparative prices (assessable value) for the period from 1997 to 1998. 6. The reason given for not accepting the contention of the Appellant are given in para 5 of the impugned order. The same is reproduced below : As the goods in question are captively consumed for manufacture of tyre the unjust enrichment clause is applicable to their refund claim of excess custom duty paid on inputs in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o customs duty. From the above statements of the appellants, it is inferred that Chartered Accountant s certificate by itself are not conclusive proof of not passing the burden of duty incidence to their ultimate customers. I find that many inputs are used for manufacture of tyre and it is obvious that cost of every input contributes towards the cost of a tyre. Therefore, it is necessary to examine the cost sheet of the manufactured tyre of the relevant period to see the impact of inputs i.e. Nylon Tyre Cord Fabric on the tyre cost. On examination of the cost sheet submitted by the appellants, I find that the material cost of Nylon Tyre Cord fabric as on 1st April, 1998, 1st July, 98 and 1st Oct. 98 is on increasing trend in many cases. I also find that the material cost of rubber on which the appellants claimed to have paid excess cess is also on increasing trend in many cases in that period. In view of such circumstantial evidence, CA s certificate dated 28-1-04 and 29-1-04 does not help the appellants in proving that burden of duties was not passed on to the buyers of the finished goods. Accordingly, the present case is distinguishable from the relied upon decisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the above amount of Rs. 27,50,306/- under the head of account Loans and Advances and was duly reflected in the balance Sheet as at 31-3-99 (relevant pages enclosed as Annexure-4). Thus, the above amount was not treated as an expenditure item and was never included in the cost of production of tyres. Copy of Chartered Accountant Certificate for Rs. 27,50,306/- and Rs. 26,106/- to the effect that the amount is shown against advances in books of accounts is enclosed as Annexure-5 8. The Ld. SDR on the other hand points out that the certificate of Chartered Accountant is silent on the fact whether the incidence of duty was passed on or not. The certificate only states that there are entries showing anticipated refund in the books of account of the Appellant. These certificates do not discharge the burden as specified in Section 11B of the Customs Act. 9. The Counsel for the Appellant gave further written submissions on 20-6-2011 pointing out the following decisions to support his case :- (i) CC v. Virundhunagar Textile Mills Ltd. - 2008 (230) E.L.T. 411 (Mad.). (ii) MRF v. CC, Kolkata - 2008 (225) E.L.T. 246 (Tri.- Kol.). (iii) J.K. Industries v. CC, Kolkata - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97.95 97.95 15. 900.20/100.20 FLAPS 40.12 139.39 106.27 106.23 106.23 12. It is relevant that the budget for the year 1998 was presented on 1-6-98 and from 2-6-98 the SCD and SACD stood abolished. The refund claim is on account of these duties paid on raw materials used earlier. It is clear from the data given above that from 8-6-98, that is when prices were declared after taking into consideration the changes made in the 1998 budget the prices have come down. In the budget the impugned duties were withdrawn. This clearly implies that for the earlier period the Appellant was passing on the incidence of the said duties though they were expecting a refund of such duties and they made appropriate entries in their financial accounts. The entries in accounts like items at s. no. (a), (b), (c) and (f) of para 5 above can demonstrate only that the Appellant was expecting a refund and cannot prove that they were not passing on the incidence which they were bearing at least temporarily. The burden of proving that the incidence is not passed on is on the Appellant as per provisions in Section 11B of the Customs Act. Whatever ..... X X X X Extracts X X X X X X X X Extracts X X X X
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