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TMI Blog2024 (3) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... he documents have been placed by the appellant justify that the export duty paid by them has not been passed on to the buyer brushing them aside without any reasoning is not sustainable. The seller has borne the incidence of duty. The undertaking by the buyer also is on record which states that the incidence of export duty for the impugned shipment was not passed on to them. In view of the above documents, there are no reason to sustain the impugned order. Appeal allowed. - DR. D.M. MISRA, MEMBER (JUDICIAL) AND MRS. R. BHAGYA DEVI, MEMBER (TECHNICAL) Shri Syed Peeran, Advocate for the Appellant Shri K.A. Jathin, Authorised Representative for the Respondent ORDER Briefly stated the facts are the appellant M/s. Muneer Enterprises, claimed refund of export duty paid in excess consequent to the issuance of duty reduction Notification No.62/2007 dated 03.05.2007. The original authority on verification of the contract observed that the contract dated 26.04.2007 between the buyer and the seller under Clause 4 stated that all Indian taxes on cargo will be borne by the seller. He also noted that the Bank Realization Certificate and invoice, the bill amount (in foreign exchange and dispatc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed on. To substantiate his argument, he relies on the following judgments: CCE vs. EL.P.EM. Industries: 2017 (356) ELT 565 (Mad.-HC) Indian Metals and Ferro Alloys vs. CCE: 2000 (125) ELT-145(Tri.) as maintained by the supreme Court in 2011(127) ELT A162(SC) 2.1 They have also placed reliance on the decision of the Hon ble Andhra Pradesh High Court in the case of Asia Pacific Commodities Ltd. vs. Assistant Commissioner of Customs: 2012 (280) ELT 481 (AP) wherein it was held that in terms of the obligations of a seller prescribe under the Incoterms 2000 for a FOB shipment, he has to bear all expenses of shipment including customs duties before the goods are put on Board. Hence, in the instance case where the contract for sale on FOB basis included a clause that all export duties shall be on the seller s account, the question of passing on the duty does not arise. He also relied on the Tribunal s decision in the case of GNG Exports vs. Commissioner of Customs: 2019 (370) ELT 390 (Tri.-Hyd.) and on the decision in the case of Commissioner of Customs vs. Sesa Goa Ltd.: 2016 (334) ELT 62 (Tri. Kol.), Further, it is submitted that the Chartered Accountant s Certificate the shipping bil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e without any reasoning is not sustainable. This is very clearly brought out by the Hon ble High Court in the case of. EL.P.EM. Industries (supra) wherein it was observed that: 21. --- The only area of scrutiny is liable to be confined as to whether the actual refund to the assessee would amount to unjust enrichment. This question is not examined from the point of finding out as to whether duty burden is already passed on to the others or not. Surmises and conjectures are drawn by setting out that though Excise Duty is not shown separately in the bills or invoices, but, in the absence of supporting documents that the burden of duty has not been passed on to the others, the claim for refund is rejected. If the burden of Excise Duty is passed on to the others, it gets reflected in the Bills and invoices. That is positive evidence. That was produced to show that no such burden is passed off. The appellate authority goes one step forward and found as a fact the expense account of the assessee has reflected the Excise Duty paid. But, he would surmise that the assessee company would have taken that component also, while working out the costing of the monoblock pump. It is, thus, clear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt or import it is now made clear that this obligation does not only include the payment of duty and other charges but also the performance and payment of whatever administrative matters are connected with the passing of the goods through customs and the information to the authorities in this connection. Further, it has although quite wrongfully been considered in some quarters inappropriate to use terms dealing with the obligation to clear the goods through customs when, as in intra-European Union trade or other free trade areas, there is no longer any obligation to pay duty and no restrictions relating to import or export. In order to clarify the situation, the words where applicable have been added in the A2 and B2, A6 and B6 clauses of the relevant Incoterms in order for them to be used without any ambiguity where no customs procedures are required. It is normally desirable that customs clearance is arranged by the party domiciled in the country where such clearance should take place or at least by somebody acting there on his behalf. Thus, the exporter should normally clear the goods for export, while the importer should clear the goods for import. (emphasis supplied) In the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ountry of destination shall be for buyer s account. Further all taxes/duties on freight and vessel is to vessel owner s account. Buyer s obligations are found in Part B of FOB contract. As per point B2 read with B6 the buyer must obtain any import license where applicable and pay all customs formalities for the import of goods and where necessary for their transit through any country. From a perusal of the FOB contract terms in Incoterms, there cannot be any doubt that it is always the duty and obligation of the seller to bear the costs of customs formalities as well as the duties, taxes and charges payable upon export. 22 . In these appeals, the invoice value is also FOB value. Therefore it cannot be said to include the duty paid under the Cess Act and, therefore, the presumption under Section 28D of the Act stands rebutted by the appellants. The CCE (A) went utterly wrong in construing the point A6 ignoring paragraph 14 of Incoterms as well as the sale contract between the appellant and buyer. Therefore the CESTAT was justified in holding that the finding of CCE (A) that FOB value included the cess is unsustainable. We accordingly hold that the principle of unjust enrichment does ..... X X X X Extracts X X X X X X X X Extracts X X X X
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