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TMI Blog2014 (9) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... able on the said consignment as per Notification No. 149/95, dated 19th September, 1995. The appellant claims that CVD amounting to Rs. 22,34,700/- was erroneously calculated and paid on 23rd April, 1997 but within the statutory time, the appellant filed a refund claim before the Assistant Commissioner of Customs (Refund) vide refund claim application dated 11th August, 1997. The Assistant Commissioner of Customs (Refund), however, rejected the refund application by order dated 5th March, 1998. The matter was taken up in appeal and orders of remand was passed, and ultimately vide order dated 3rd February, 2000, passed by the Tribunal, the appellant was held entitled to refund of CVD and the same was directed to be paid in accordance with law. The directions given by the Tribunal in their order dated 3rd February, 2000 read : "We have heard the rival submissions. We have perused the various Notifications particularly Notification No. 149/95. We note that Advance licence was issued to the appellants on 23-8-1996. We find that the requirement of Notification 149/95 was that the exemption under this Notification shall be available on the goods imported into India against an advance li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Section 27(2) of the Customs Act, 1962 (Act). He observed that the appellant had not been able to substantiate their contention that the CVD paid on the imported goods has not been taken into account while calculating the sale value of the subject goods. He further observed that the appellant could not corroborate the contention that the CVD had not been passed on to their customers/buyers. The said order at the same time records that the file of the Department was untraceable and at request the appellant had furnished photocopies of documents along with indemnity bond, copy of balance sheet and Chartered Accountant certificate. The party had also furnished invoices for the relevant period for verification. 6. The appellant did not succeed before the Commissioner (Appeals), who vide order dated 31st January, 2008, rejected the claim. The appellate authority did not go into the question of unjust enrichment on merits and the claim of the appellant that they have not passed on CVD duty. Commissioner (Appeals) failed to deal with the said issue and had only examined the scope of order of the Tribunal dated 3rd February, 2000. 7. As noticed above, the appellant has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Tribunal and they have referred to the generality and quite contrary to specific evidence and material, have failed to deal with the issue and submission. The document/papers relied upon by the appellant find mention even in the order passed by the Assistant Commissioner of Customs (Refund). 9. The learned counsel for the appellant has drawn our attention to the submissions which were made before the Tribunal, which have been enclosed as Annexure-14. We would like to reproduce some portions of the said submissions which read : "That the appellate authority has also not brought out any reason for rejection of Balance Sheet, the Chartered Accountant Certificate and the sale invoices of the appellant. All these financial documents that erroneously paid CVD was shown in the books of account as recoverable from the Government had not been passed to the consumer and therefore was justifiably to be refunded to the appellant and not taken into the consumer fund. xxxxxxx That without prejudice to the submission made above in regard to unjust enrichment not being invoked, the appellant also put across to the Hon'ble Assistant Commissioner (Refund) and Commissioner of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd Feb., 2000, it was held that the appellant was entitled to refund of CVD and the same however would be paid in accordance with law. The order dated 1st March, 2006 records that the appellant had furnished indemnity bond, affidavit, copy of balance sheet, Chartered Accountant certificate. On scrutiny of these documents, the appellant was asked to furnish audited balance sheet and invoices for the relevant period for verification. It records that the appellant had furnished import invoices issued by the supplier. Sale invoices as required for verification were also submitted. The Chartered Accountant certificate dated 28th October, 1997 specifically states that no Modvat was claimed against the amount of Rs. 22, 34,700/- . It also states that there was no change in the cost of motorcycles for last more than one year and thus there was no involvement of unjust enrichment. In spite of the said material, the Assistant Commissioner of Customs (Refund) refused to pay/refund on the ground that the appellant was not able to substantiate their contentions in the form of documentary evidence. He did not elaborate as to what sort of corroboration or evidence was required and how the content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 3 (S.C.). 13. Section 28D states that every person who has paid duty on any goods, unless contrary is proved by him, is deemed to have passed on full incidence of such duty to the buyer. It raises a rebuttable presumption and the assessee can prove to the contrary. In Solar Pesticides (supra), question arose whether the plea/bar of unjust enrichment can be applied to cases of captive consumption. The plea and the contention of the assessee that the said principle would not be applicable in case of captive consumption but would apply only against resale of imported goods, was rejected by the Supreme Court by observing that the principle of unjust enrichment applies not to duty but incidence of such duty, which means burden of duty. Thus, when the duty paid on the raw material is added to the price of the goods, the incidence of duty is passed on to the buyer who actually pays for the same. The burden of duty on the raw material is not borne by the assessee. The Supreme Court rejected the contention that as Section 28C was not applicable in case of captive consumption, the principle of unjust enrichment would not be applicable. As the learned counsel for the respondent has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase price. No record as to costing of that item has been produced. This material was relevant as in the present case NIIL conceded that it had passed on the burden of duty to its distributor M/s. AGIL (buyer) and it was the buyer who claimed refund. It has been urged on behalf of the respondent and which argument has been accepted by the authorities below that 20% of the total price paid by M/s. AGIL to NIIL represented total excess excise duty levied and not the excess duty collected by NIIL in the form of sale price from its distributor M/s. NIIL. It was argued that excess duty collected by NIIL represented only 1.62% of the total price. It was argued that resale price charged by M/s. AGIL to its dealers had no relevance to excess excise duty paid by M/s. AGIL to NIIL at the time of purchase as the sale price charged by M/s. AGIL to its dealers was based on the prevailing market price. We do not find any merit in this argument. In the present case, the refund claim is made by a buyer and not by the manufacturer. The buyer says that he has not passed on the burden to its dealers. The buyer has bought the goods from the manufacturer paying the purchase price which included cos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the concurrent finding of fact." (Emphasis supplied) 15. The Supreme Court noticed that the assessee at the earlier proceedings had conceded before the High Court that it had passed on the duty burden to its distributor and the only question was whether the distributer had passed on the duty burden to the dealers. It was therefore observed that it was highly improbable that the distributor had borne the duty burden or element of 20% which was already included in the purchase price of the distributor. The period in question was a decade long between 1974 to 1984. It was therefore, highly improbable that the distributor would have paid and borne the entire duty burden for the said period. It was further observed that no material was placed on record which supported the said improbability of the duty burden not being passed on to third parties. The distributors had failed to produce their account books. The assessee had also taken a plea that the actual excess duty represented only a fractional amount of the total price. But this conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is not possible that in no case will an importer not be able to prove that the incidence of the duty imposed on the imported raw material has not been passed on to any other person. In fact in Civil Appeal No. 4381 of 1999 filed by the Commissioner of Customs against M/s. Surya Roshini Limited, the importer had produced certificate from the Chartered Accountants giving details of costing of the final product and the Commissioner (Appeals) found as a fact that the component of excess customs duty paid on the imported raw material had not gone into the costing of the finished product. Without going into the correctness of this finding we wish to emphasize that even in cases of captive consumption, it should be possible for the importer to show and prove before the authorities concerned that the incidence of duty on the raw material, in respect of which refund is claimed, has not been passed on by the importer to anybody else." 17. While examining the question whether or not burden of duty has been discharged by the assessee, one has to be practical and adopt a realistic approach and not be oblivious as to nature and character of proof which will be available. When the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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