9911796707
TMI Blog2014 (2) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. Further schedule No. 14 of the said Balance Sheet, details how the cost of goods sold is calculated. It is seen from the said calculation that CIF value, Customs duty, Clearing and another incidental charges are considered as cost of goods sold. The disputed duty amount is insignificant in the over all scheme of pricing. In fact, post sale, respondent claims to pay 43% bonus to the distributors above certain level. It is perhaps for such reasons that wholesale prices were not changed and the disputed duty was considered as the cost of material sold. These goods are being sold as multilevel marketing. We also note that the dispute continued for more than three years and no prudent business man/organization would continue to bear incidence of higher duty without passing the same to the buyer of the goods. We are therefore of the view that respondents have failed to prove that incidence of duty disputed has not been passed on to the buyer of such goods - since no separate duty has been indicated in the invoices it has to be assumed that total burden of Customs duty has been passed on to the buyer of goods - In any case, whether the burden of duty has been passed to the buyer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leared on payment of duty under protest. Against the order-in-original relating to classification, respondent filed appeal before Commissioner (Appeals) who allowed the appeal vide order dated 17.04.2006 by reaffirming the classification under 20.09. Thereafter original authority examined the refund claim for an amount of Rs.10,78,295/-. It was held that classification of Aloe Bits N Peaches was not covered by the Order-in-appeal dated 17.4.2006 and hence refund claim for an amount of Rs.31,004/- is not maintainable. The remaining refund claim of Rs.10,47,795/- for the other three products was sanctioned but credited to the Consumer Welfare Fund on the grounds of unjust enrichment. On appeal, Commissioner (Appeals) vide order dated 16.8.2007 held that finished product is also classifiable under 20.09 and also allowed the appeal of the respondent. Revenue is in appeal against the said order also. 3. Case was heard at length and the Learned Advocate for the respondents stated that they are not pressing refund claim relating to Aloe Bits N Peaches as the amount involved is just Rs.31,004/-, and would be pressing for the refund claim for the remaining amount in both the appeals. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e would be a corroborative piece of evidence. But the corroborative piece of evidence cannot be itself a main piece of evidence regarding the fact which is required to be proved by the party. The fact which is required to be proved by the party in the case in hand is about the non-collection of excise duty from their buyers. The said fact does not stand proved by the statement of the Chartered Accountant that the books of account maintained by the appellants discloses short payment of excise duty or that certain amount is outstanding and/or recoverable. Unless the preliminary requirement of proof regarding non-collection of the duty is established by cogent evidence, mere recording of the amount being recoverable in the account books that itself cannot be a proof of fact of non-collection of duty. (iii) In the case of CC(Export), Chennai V/s. BPL Ltd. - 2010 (259) ELT 526 (Mad), in para 8 of its order, the Hon'ble High Court, Madras has held as follows: 8 The certificate issued by the Chartered Accountant is merely a piece of evidence acknowledging certain facts. The authorities cannot merely act upon the certificate. If such an interpretation is given, then there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had suffered any loss. Variation in profit is normal in business. 5.1 Ld. Advocate for the respondent's main contention is that the MRP of the goods was accepted by the Customs and this remained same throughout i.e. when the goods were being classified under heading 2209 or 2106. He further stated that the orders of the Supreme Court in the case of Interach Building Products Pvt. Ltd. Vs. CCE, Ghaziabad (supra) and Allied Photographics India Ltd. (supra) did not stipulate that in all the cases where the price of the goods had remained same, no refund will be granted. Even in such cases assessee is entitled to prove that he has not passed on the duty burden to the buyer of goods and in case assessee is able to prove then refund is required to be granted. 5.2 Learned advocate further contended that retail sale price of the goods is fixed by the overseas supplier and in support of this a Certificate was produced. He further argued that they have purchased the goods at fixed price from the supplier and were required to market the goods at the price (fixed by the supplier). Under the circumstances, it cannot be said that they have passed on the burden of duty to the buyer. 5.3 L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on to the final buyer of the goods. We have carefully gone through the calculations produced by the learned Advocate for the appellant and explained during the arguments Learned Counsel has indicated cost of the goods with admitted duty and with higher duty (as deposited at the time of clearance). After addition of the duty element, in next column has indicated the wholesale price. The wholesale price again is not based upon any cost construction method but 30% less than the suggested retail price. Thus the earlier columns have no relevance and cost construction method fails. It is further claimed that on this Whole Sale Price, VAT/Sales tax, Surcharge, and Turnover Tax is added. After adding these, distribute price is arrived. We also note that as per the information supplied the distributors are not selling the goods at the suggested retail sale price but after adding earlier mentioned taxes. Thus the so called RSP does not even represent the correct selling price. In view of above analysis, we are of the view that respondents have not been able to show from the said calculation that burden of duty has not been passed on the buyer of goods. During the arguments it was inq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C of the Customs Act specifically required that price of goods to indicate the amount of duty paid therein. The said Section reads as under: INDICATING AMOUNT OF DUTY IN THE PRICE OF GOODS, ETC., FOR PURPOSE OF REFUND SECTION 28C. Price of goods to indicate the amount of duty paid thereon. - Notwithstanding anything contained in this Act or any other law for the time being in force, every person who is liable to pay duty on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. Learned Advocate for the respondents have claimed that in the said Section indication of duty in the sale invoice is relevant only at the time of customs clearances which implies that it is applicable only in respect of duty delivered price. We do not find any such anticipation under Section 28C. Section 28C requires every person who is liable to pay duty on any goods to indicate in the sales invoices and other like documents the amount of such duty which will form part of the price at which such g ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
