9911796707
TMI Blog2002 (1) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... on the Chartered Accountant's certificate dated 22-1-96 to contend that the excess cess paid has not been passed to the customer or buyer either directly or indirectly. The Commissioner had sought clarification from the appellants to show from books of account as to how it has been shown and accounted. They took time to do the same and by their letter dated 21-2-96 explained that the "a product also has indirect costs like interest, depreciation, overhead etc. Interest and depreciation arise out of cost of capital incurred in manufacturing a product. In this case the additional cess that we have paid has increased the cost of twisters by Rs. 1,04,647/-. This cost has been capitalised as can be seen from our assets register. The direct impac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermissible to assume that in the last over 5 years, the excess cess paid by the appellant has been amortised in the cost of the end-product and thus directly passed on to the buyers of the twisters produced by the appellant by using the imported textile machinery. In view of the above, I am not inclined to interfere with the original order which is maintainable." 2. Arguing for the appellants ld. Counsel, Shri Murugappan accompanied with Ms. Pramila submits that the doctrine of unjust enrichment will not apply to capital goods. He submits before the Tribunal that they have produced the Chartered Accountant's certificate to show that the duty has not been passed to the customer directly or indirectly. The capital goods have been consume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest the price is fixed and the value is recorded by profits from the sale of the goods. Since the judgment rendered by Madras High Court relied by the Counsel is distinguishable and further it is not legally a good law as the Madras High Court judgment relied on Bombay High Court of Solar Pesticides which has since been overruled by the Apex Court. He submits that the certificate of Chartered Accountant for amortisation has no relevance to the issue as the appellants recovered the amount by way of depreciation from the goods. In counter ld. Counsel submitted that the depreciation and interest gets merged in the capital goods account and there is no way to determine the same with the price of the final product sold and pricing structure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to in Section 27(1) of the Customs Act brings within its ambit duty paid on all types of goods. Goods include both raw materials, final goods as well as capital goods. Therefore we hold that the duty paid on capital goods are covered within the ambit of unjust enrichment. What is required to be seen is as to whether the burden has been passed on to the customer or not, directly or indirectly. We are also supported by the judgment of the Tribunal rendered in Xerox Modi Corpn. v. CC as reported in 2001 (134) E.L.T. 523 wherein in Para 7 the Tribunal relying on the judgment of UOI v. Jain Spinners as reported in 1992 (61) E.L.T. 321 (S.C.) has held that the provisions of unjust enrichment in Section 11B have retrospective effect and are appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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