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TMI Blog2017 (7) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... not submitted the satisfactory evidence to the original authority, accordingly the sanctioned refund was credited into Consumer Welfare Fund, for this reason the Commissioner (Appeals) should not have allowed the appeal. He placed reliance on the decision of this Tribunal in the case of A.K. Enterprise Vs. Commissioner of Customs (Port), Kolkata. 3. None appeared on behalf of the respondent despite notice. 4. I have carefully considered the submissions made by the Ld. A.R. and perused the records. I find that the limited issue is whether the refund of the respondent is hit by unjust enrichment. On going through impugned order I observed that the most important evidence produced by the respondent is the sale invoice of the imported goods which was sold @ of Rs. 90/- per kg. whereas the total cost of importation comes to Rs. 314/-per kg. which shows that the duty incidence has not been passed on. The respondent also submitted the Chartered Accountant certificate and also the Balance Sheet which shows that the amount refundable is accounted for under the group head of current asset. With these two evidences, I am of the view that proof that the incidence of duty has not been passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tressed that gross purchase cost of the imported goods, excluding the duty paid under protest was Rs. 32,70,144/- @157/- per Kg, whereas the same vas sold at Rs. 18,71,100/- in 1998 @ Rs. 90 Per Kg; that the sale invoice showed that clearance was sought duty free under DEEC scheme; that such imported goods were abundantly available in the market; that international as well as Domestic prices were since the instant importation; that it was therefore impossible to pass the duty burden on the customer. The Certificate of Chartered Accountant showing duty paid under protest among recoverable under current assets was also highlighted to show that the duty incidence was not passed on to the buyer. The retention of the amounts paid under protest, in the above circumstances, was according to the appellant violative of Art.265 of the Constitution of India. The Appellant could not furnish income-tax returns for the firm from year 95-96 till last financial year and submitted that same were not filed. Appellant submitted that since it was the first and only transaction of any taxable commodity in the firm, sales tax registration was not taken. No other balance sheet pertaining to previous fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, the appeal was taken up for hearing on an urgent 'basis. Shri Saniay Agarwal attended the personal hearing on behalf of the appellant. Submissions made before the original authority as well as those made in the written submission were reiterated. 6. It is observed that the submission of the appellant that the prevailing domestic as well as international market price of the PTY were on a continuous downslide is supported by the list price. of raw material POY as published through the report of Expert Committee on Textile Policy, 1999, it is undisputed that the Landed Cost including the duty paid under protest was Rs. 65,25,145/- Rs. 314/- per Kg and from the note-sheet attached to the Test bond it is evident that the 100% market value of the goods was taken as Rs. 40,10,584/- i.e. @ Rs. 193/- per Kg at the time of provisional assessment and release of the goods in 1995. It is therefore beyond doubt that to pass on the duty burden on the customer, the sale price should have been at least Rs. 314/- per has also been shown that the prices were on a continuous downslide and the goods were not sold even as late as September 98. There is therefore merit in the plea that they wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be passed on to customer in view of huge losses suffered, and the sale price and costing of the goods was not questioned. it was further held that cost of goods is a pure question of fact and profit and loss are to be determined consequently to the cost of the goods and import duties. It was imposable in the instant case to pass the duty burden on the customer in view of the high landed cost of Rs. 314/- per kg. In the case of Bombay Trading Co. (supra) the Hon'ble Tribunal observed that "From the above particulars, it is seen that the goods have been sold a Rs. 24,79,076/-. It is on record, that the Department enhanced the value of goods to Rs. 31,06,897/-. It is also on record that the Duty paid on the enhanced value is Rs. 18,71,312/-. If the Appellant by selling the goods had passed on the Duty burden to the buyer, his selling price cannot be less than Rs. 31,06,897/- plus Rs. 18,71,312/- equal to Rs. 49,78,209. However, the invoices show the total sale price at Rs. 24,79,076/-. That means the Appellant had sold the goods at a great loss and it is very clear that the Duty burden has not at all been passed." The Hon'ble Tribunal further observed that- It should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the buyer and that therefore Section 28C of the Act was infact complied with by dint of their mentioning in the invoice that the clearance was sought "duty free", and hence there was no question of showing on the invoice any amount of customs and excise duty separately. It has therefore to be held that in the instant case the appellant has proved that it was impossible to pass on the burden of duty incidence on to the customer, and has discharged the onus cast upon him under section 27(2) of the Act. it is also to be noted that the Hon'ble High Court, while disposing of the WP No 1868 of 1995 on 31-03-04, has ordered for refund of the amount with interest at the rate of 6% per annum from the date of payment till refund in full and final. 8. in view of the above findings the impugned order is hereby set aside and the amount of duty paid under, :cot pct i.e. Rs. 22,55,001/- (Rupees Twenty Two Lakhs Fifty Five Thousand and One only) is ordered to be refunded alongwith interest @6% p.a. from 16-11-1995 till the date of refund. The prayer for grant of statutory rate of interest cannot be entertained and is rejected as the refund arises due to a specific order of the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X
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