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TMI Blog2008 (12) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... ed reconditioned Mainframes of photocopiers and filed Bills of Entry for their Clearance for home consumption. The goods, on examination, were found to be old and used. It was also reported that the goods have the essential features of photocopiers without constituting a full photocopier. 6. It was held by the Assessing Group of the Department that : (i) The declared value of the mainframes is low and is liable to be enhanced; (ii) The old and used mainframes of photocopiers, being in the nature of assembly/sub-assembly of components for photocopiers, cannot be freely importable under Sr. No. 9009909010 of ITC (HC) classification; (iii) As per the examination report, the mainframes have the essential features of a photocopier. Therefore, in terms of interpretative Rule 2(a) of the Customs Tariff Act, 1975, the imported mainframes are liable to be classified as photocopiers under heading 9009.11, attracting duty @ 40% (basic customs duty) instead of 25% under heading 9009.90 claimed by the importers. 7. The case was adjudicated and the value of the imported mainframes was ordered to be enhanced by the adjudicating authority. The imported mainframes were ordered to be confiscate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 216 (Tri.- Delhi)]; M/s. Eltech Enterprises v. CC, Mumbai [1999 (112) E.L.T. 877 (Tri.)] that the Chartered Accountant's certificate not supported by relevant sales bills or documents relating to placing order and terms of supply, is not sufficient to show that the burden has not been passed on to any other person, with a prayer to remand the case back to the original adjudicating authority. 13. The Commissioner of Customs (Appeals), vide the impugned Orders, rejected the said appeals stating that since the question of passing of burden to the ultimate buyer of the goods does not arise, presumption of unjust enrichment under Section 28D of the Customs Act, 1962 would not apply on the ground that the goods are second hand, old and used. The sale price of these goods was determined not on the basis of the landed cost and duty payment but on the basis of the negotiations depending on the demand of the particular model, the condition of the goods and the availability of similar goods in the market, which further stands to logic that the sale price of the goods in the instant case would have no relationship with landed cost and the other cost burden such as duty, fine and penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further evidence on that score, the matter was remanded. (ii) Hanil Era Textiles Ltd. v. CCE, Raigad [2008 (225) E.L.T. 117 (Tri.-Mumbai)] in which the refund was rejected on the ground that the Chartered Accountant's certificate produced is not sufficient to discharge the burden cast upon the appellants. (iii) Stay Order No. S/626/08/CSTB/C-I, dated 4-11-2008 [2009 (235) ELI. 710 (T)] of the Mumbai Tribunal in the case of M/s. Larsen and Toubro Ltd.; in which it was held that the amount shown as recoverable in the balance sheet and the C.A. certificate dated 13-7-2006 are not the conclusive proof of having not passed on the incidence of duty to EIL/ONGC and, therefore, the Order of the Commissioner (Appeals) granting refund to M/s. Larsen and Toubro Ltd. was stayed. It was also observed in the said stay order that it is the 'incidence of duty' and not the duty of customs as such which is required to be shown to have not been passed on from the sale record/contract price. (iv) Kirloskar Oil Engines Ltd. v. Commissioner of Customs, Mumbai [2004 (174) E.L.T. 54 (Tri.-Mum.)] in which it was held that the certificate of the C.A., without any supporting documents is not sufficient t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Customs under 'other current assets' and the certificate of the Chartered Accountant was also produced to that effect; (b) Jaipur Syntex Ltd. v. Commissioner of Central Excise, Jaipur [2002 (143) E.L.T. 605 (Tri.-Del.)] in which it was held that the incidence of duty is not passed on by the assessee to the customers in view of the evidence produced by them in the form of balance sheets for various years and, therefore, the refund is admissible. (iii) The learned Counsel of the respondents also maintained that the Chartered Accountant's certificate is based on the audited Balance sheet of the company as on 31st March, 2000; that refunds from Customs have not been considered for costing at the time of sale of the end product and; that the amounts have not been credited to Profit and Loss Accounts. 18. I have carefully considered the rival submissions and perused the records. I find that the Hon'ble Karnataka High Court in the case of Dynamatic Technologies Ltd. v. Union of India [2005 (186) E.L.T. 277 (Karnataka)] has held as under : "Show cause notice - Protective demand notice - Validity of Recovery of erroneous refund - Refund being only as a consequence of an order/directio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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