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TMI Blog2014 (2) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... of exemption under Customs Notification No.29/97-Cus against EPCG scheme. The department had doubt whether the notification would apply to the goods imported and they made reference to Central Board of Excise and Customs. Since the clarification on the issue was getting delayed, the respondent paid customs duty as would be applicable but for the exemption under Notification No.29/97-Cus. The matter was adjudicated and after first appeal the matter came before Tribunal. The Tribunal vide Final Order A/534WZB/2004 CH dated 29-06-2004 set aside the order of the Commissioner (Appeal) and allowed the appeal filed by respondent herein with consequential relief. 3. Based on the final order dated 29-06-2004 of the Tribunal the respondent filed ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Asst. Commissioner, the respondent filed appeal with the Commissioner (Appeals). The Commissioner (Appeals) held that unjust enrichment was not applicable in the facts of this case and ordered that the amount should be refunded to the respondent. The reason given by the Commissioner (Appeals) is recorded as below :- The appellants contend in their grounds of appeal that there is no question of "unjust enrichment" as the imported capital goods are under the zero duty EPCG Licence and the duty had been borne by them. They also contend that their entire sales is by way of exports and there is no local sales and therefore there is no question of passing the duty to any party. They contend that they suffered because all their export orders were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Chartered Accountant is misconceived to conclusively establish that the appellant had enriched itself by passing on the incidence of duty to the ultimate consumers. In this matter, they allege that the Lower Authority failed to call for further clarifications on the aspect of unjust enrichment without proceeding to reject the claim of the appellant by directing the amount to be credited to the Consumer Welfare Fund." Revenue has filed an appeal on the ground that this order of the Commissioner (Appeals) is not legal and proper. 6. Arguing for the Revenue, Ld. AR submits that it is well settled that every claim of refund has to pass the test of unjust enrichment as laid down in Section 27 (2) of the Customs Act, 1962. She submits that e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no question of passing on incidence of duty on the goods to anybody else. Secondly, he submits that the respondent was in the business of manufacturing for export. Where the goods are exported and the prices are already decided as per the contracts entered into with the overseas buyers, the prices cannot be changed due to any duty incidence on the manufacturer in India. He submits that the policy of the government is to ensure that the manufacturers doing manufacturing activity for exports are not burdened with any duty incidence. In fact, the EPCG scheme itself was meant for that and the respondent had claimed such benefit. But due to the delay in deciding the issue the respondent had paid duty and cleared the machines to fulfill the expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent footing as compared to raw material. I also take note of the principle that exporters are to be given relief of local incidence of duties.
9. The fact that he has accounted the depreciation of duty paid (though it was not payable) can only reflect on his profitability and it cannot be taken as a proof that he has passed on the incidence to the foreign buyer. Therefore, I consider it proper to follow the decisions already taken by the Tribunal in this regard, as cited by the Ld. Advocate for respondent and reject the appeal filed by Revenue and uphold the decision of the Commissioner (Appeals). The cross objection filed by respondent also gets disposed of accordingly.
(Dictated and pronounced in open court) X X X X Extracts X X X X X X X X Extracts X X X X
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