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TMI Blog2008 (5) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... time. However, since in those days his regular authorized representative, Shri K.L. Rekhi, Consultant, was not being allowed to appear before the Tribunal because of introduction of Section 129(6) of the Customs Act, 1962, he decided to appear before the Bench himself on 3-12-2007. 3. He further stated that he is of 70 years of age and a patient of 35 years old spinal disc problem for which he filed the medical papers of All India Institute of Medical Sciences pertaining to the period from 1973 to 2007. While he was on his way to Delhi Airport at about 04.14 a.m. on 3-12-2007 to catch first flight to Mumbai leaving at 6.00 a.m., he felt recurrence of pain caused perhaps by exposure to early morning Delhi cold. He, therefore, abandoned his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate since his being the outstation SSI unit can hardly afford multiple air journeys or overnight stay at Mumbai. 7. The learned SDR did not have any objection for restoration of the appeal. After hearing the learned authorized representative of the appellant at length, I am satisfied that there is sufficient cause for absence of the appellant on 3-12-2007, when the case was called up for hearing. I, therefore, recall the ex parte order and restore the appeal to its original number in exercise of powers under Rule 41 of the CESTAT (Procedure) Rules, 1982. After restoring the appeal, I accede to the request of the appellant to hear the appeal on merits. Accordingly, the appellant was heard in the matter and so also the learned SDR. 8. I hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), however, reviewed the Assistant Commissioner's Order, inter alia, on the ground of unjust enrichment. In review appeal, the Commissioner (Appeals) remanded the matter to the Deputy Commissioner of Customs for examining the bar of unjust enrichment. 12. The Deputy Commissioner as well as the Commissioner (Appeals) have rejected the claim of the appellant on the sole ground that as he has availed depreciation on total cost of the machine in his books of account, it amounted to indirectly passing on the duty incidence to his customers. 13. The appellant has contended as under: (i) He has availed the depreciation in his profit and loss account (balance sheet) under the Income-tax Act solely for determining his income-tax liability and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue order. Thus, while the Deputy Commissioner records that he maintained pre-import prices by taking a dip in his profitability, the correct fact is, as stated in the C.A. Certificate and Report, that the role of the subject machine in the cost build up of finished labels was nominal 0.525% but the machine imparted tremendous amount of production efficiency and better quality, looking to which he took a calculated decision to ignore the total cost of this machine in determining his sale prices, maintained his price line and yet his profitability more than doubled (Rs. 16 lakhs in pro-import year became Rs.34 lakhs in post-import year). Therefore, there could be no question of a dip in his profitability. The Commissioner (Appeals) records a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of customs duty was not passed on to the customers. The certificate is detailed and exhaustive. It concludes as under: "Conclusion : The conclusion that emerges from the above facts is that there was neither any need for passing on to the customer any part of the customs duty paid on the subject machine nor was it in fact passed on to customers either directly or indirectly. Further, in spite of absorbing itself, the whole of import duty paid on the machine, the overall increased efficiency, cost economy and faster turn over which the machine generated, improved the firm's profitability in the post-import years as seen from the Balance Sheet position summarized at 1 above. Certification : I accordingly certify that no part of the custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has claimed depreciation under the Income-tax Act, 1961. The same views were reiterated in the Tribunal's decision in the case of Commissioner of Customs (Import), Mumbai v. Pudumjee Plant Laboratories Ltd. reported in 2006 (205) E.L.T. 883 (Tri.-Mumbai). The appellant's case is squarely covered by these case laws.
17. Following the ratio of the above case laws and also keeping in view the fact that the Chartered Accountant has categorically certified that no part of the customs duty paid on the subject machine was passed on to the customers, directly or indirectly,. I set aside the impugned order passed by the Commissioner (Appeals) and allow the appeal.
(Pronounced on 30-5-2008 in the court) X X X X Extracts X X X X X X X X Extracts X X X X
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