9911796707
TMI Blog2003 (4) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents on payment of customs duty on the invoice value instead of LME value of the scrap provided the petitioner furnishes to the satisfaction of the Collector of Customs security of some immovable property in respect of difference in duty calculated on the basis of LME value and invoice value. By order dated 25th April, 1996 the Court permitted the petitioner to furnish bank guarantee instead of security in terms of the order dated 18th April, 1996. In respect of the other 21 containers the petitioner had paid under protest the customs duty assessed by the respondents. 2.When the matter came up for hearing today, learned Counsel for the respondent has brought to the notice of the Court the judgments of the Supreme Court in Mafatlal Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be entitled to get refund because of the plain language of Section 27 of the Customs Act. Having passed on the burden of tax to another person, directly or indirectly, it would clearly be a case of unjust enrichment if the importer/seller is then able to get refund of the duty paid from the Government notwithstanding the incidence of tax having already been passed on to the purchaser. To the arguments advanced by the importer that it would be impossible for the assessee to establish whether the duty component was passed on to the buyers of the finished goods or was borne by the importer himself, the Supreme Court observed that even in cases of captive consumption, it should be possible for the importer to show and prove before the authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of duty on the raw material, in respect of which refund is claimed, has not been passed on by the importer to anybody else." 5.Reading of the aforesaid observations of the Supreme Court clearly shows that even assuming the importer has not passed on the incidence of duty to anybody else the petitioner would not be entitled to any relief in this petition as it is not for this Court to decide this question as to whether or not the incidence of duty was passed on to anybody else. Petitioner is required to prove it before the authorities as to whether the incidence of tax was passed on to anybody else and if not whether the petitioner would be entitled to the refund of duty already paid by him. 6.I, therefore, agree with learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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