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TMI Blog2024 (10) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... t appellant had only placed the balance sheet for the year 2007-08 and 2009-10 but failed to produce any bills, vouchers, receipts relating to various expenses relatable to cost of the goods for verification and rejected the argument of the appellant that the incidence of export duty was borne by them and not passed on to the overseas buyers. On going through the cost sheet duly certified by the Chartered Accountant enclosed with the appeal paper book, we find that in arriving the cost of the material, the export duty amount was calculated @ Rs.51/- per MT for 20102 MT, which was shown separately and not included in the FOB value. The Hon ble Andhra Pradesh High Court in the case of ASIA PACIFIC COMMODITIES LTD. VERSUS ASSISTANT COMMR. OF C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onance with long standing practice followed by various Customs Houses; however, the practice was discontinued w.e.f. 01.01.2009. There are no merit in the impugned order. Consequently, the impugned order is set aside being devoid of merit and the appeal is allowed. - HON'BLE DR. D. M. MISRA , MEMBER ( JUDICIAL ) And HON'BLE MRS R BHAGYA DEVI , MEMBER ( TECHNICAL ) Mr. Syed Peeran , Advocate and Ms. Ashwini Nag , Advocate for the Appellant Mr. K. A. Jathin , Deputy Commissioner ( AR ) for the Respondent ORDER PER : DR. D. M. MISRA This is an appeal filed against Order-in-Appeal No. 41/2011 dated 19.05.2011 passed by the Commissioner of Customs (Appeals), Bangalore. 2. Briefly stated the facts of the case are that the appellant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Iron Ore fines and the vessel sailed on 19.05.2007. The shipping bill was finally assessed on 26.03.2009 for export duty on the quantity of 20,102 MT @ Rs.50/- per MT and cess @ Rs.1 per MT. The appellant claimed refund of export duty of Rs.1,22,18,798/- on 01.04.2009; however the excess export duty paid on account of reduction in rate vide Notification No.67/2007 amounting to Rs.50,25,500/- was rejected on the ground that the appellant failed to produce documents to rebut the presumption under Section 28D of the Customs Act, 1962. 3.1. He has submitted that both the authorities below have erred as the impugned goods have been exported and sold to the foreign buyers in terms of the contract at the FOB price. Further, in terms of the Int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered as cum-duty price for determination of export duty; therefore the excess duty paid is refundable to them. 4. Learned AR for the Revenue reiterated the findings of the learned Commissioner(Appeals). He has submitted that in view of the provisions of Section 28D of the Customs Act, 1962, the burden lies on the appellant to establish that the incidence of duty claimed as refund has not been passed on to the buyers of the goods. Further, he has submitted that as per the Board s Circular No.18/2008-Cus dated 10.11.2008, a policy decision was taken till 31.12.2008, the practice of computation of export duty and cesses taking the FOB price as cum-duty price to be continued. Thus, the refund amount though sanctioned has been correctly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dispute that the authorities below had sanctioned the refund acknowledging reduction in the export duty paid on Iron Ore fines; however the refund amount instead of being given to the appellant, directed to be transferred to the Consumer Welfare Fund observing that the appellant had failed to discharge the burden to show that incidence of duty had not been passed on to others. Responding to the finding of the authorities below, the learned advocate for the appellant referred to the cost sheet, financial statements for the period 2009-10 and the Chartered Accountant s certificate to establish that the excess amount of duty paid at the time of provisional assessment of the shipping bill was not passed on to the overseas buyer but borne by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contention of Department that bar of unjust enrichment is applicable in such cases observed as follows : 21. As per the above clause all export duties, taxes, levies etc., on cargo present or future in India shall be for seller s account and all import duties, taxes, levies etc., present or future in the country 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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