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TMI Blog2004 (3) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... of IT returns and of Balancesheet to the Commissioner (Appeals) are issued not germane and are irrelevant for considering the question of unjust enrichment the sale of imported goods been made by the importer. The cost of goods is a pure question of fact and profit and loss are to be determined consequently to the cost of the goods of import duties, especially on enhanced value would be a important component of costs. Since the presumption raised by Sec. 28D of the Customs Act, 1962 is a rebuttable presumption of law and not conclusive merely because the documents of sale are not as per the provision of Section 28 DR it can t be presumed that whatever the appellants has recovered from his customer was first duty of customs and there-after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) Sale Bill No. 2/97-98, dated 1-3-98. (b) Sale invoice Bill No. 1/97-98, dated 28-2-98 (c) SIL debit note dated 1-1-98 (d) Customs House Agent, M/s. Swen Agenies Pvt. Ltd. bill receipt. (e) Bill of exchange dated 3-1-98 (f) HDFC draft dated 4-2-98 (g) Bill of Entry along with purchase order, proforma invoices, commercial invoice, packing list, Airway bill and documents arrival notice dated 29-1-98. The Deputy Commissioner held as follows :- "Assessable value declared in the above Bill of Entry is Rs. 2,41,188/- but value adopted is Rs. 7,50,000/- Duty paid on the adopted assessable value is Rs. 3,51,751/-. Duty per piece work out to Rs. 35.18 (approx.). From the sales invoice for B/E No. 1771/9-1-98 produced by y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the goods would be Rs. 10.82 per pc. to account for the loss stated to have been incurred buy the importer accordingly the Deputy Commissioner ordered refund arising out of the appellate order the credited to consumer welfare fund under Section 27 of the Act". 3. Commissioner (Appeals) found : (a) That the evidence produced by the appellant clearly shows that there has been a loss of Rs. 2,77,132/- in the entire transaction and the Deputy Commissioner while ordering deposit of the refund amount (duty paid Rs. 3,51,750/-) duty payable of Rs. 1,13,056/- = Rs. 2,38,694/- has erroneously held that the entire amount of duty burden has been deemed to have been passed on to the buyer of the Brick Games. (b) That non-mention of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contention. (e) Directed the Appellant to produce the Income-tax Returns and the Balancesheets and to produce sales invoices for the same item before and after the present sales were effected, the party was unable to produce the same for good reasons which was communicated to the Commissioner (Appeals) in the form of a letter dated 24th January, 2001 but the Commissioners held that it is not proved that the duty burden has not been passed on to the consumer and accordingly upheld the Order-in-Original vide his impugned order dated 8th February, 2001. Hence the present appeal. 4. After hearing both sides and considering the matter it is found : (a) Commissioner (Appeals) is in error in ignoring the submission as regards the non-menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of Section 28 DR it can't be presumed that whatever the appellants has recovered from his customer was first duty of customs and there-after his own costs. (e) Vide Final Order No. A/1198/2003-NB (SM), dated 3-10-2003 in the case of Mohan Sales (India), [2003 (158) E.L.T 667 (T)] the Tribunal set aside the finding of unjust enrichment and orders of credit to welfare fund in a case where Revenues conclusion that it is not possible to sell goods on losses was set aside after accepting the contention that presumption in law 5. Of having passed the duty burden is a rebuttable presumption and since invoice and certificate was not being disputed. The refunds were ordered as order directing the same to be credited to Consumer Welfare ..... X X X X Extracts X X X X X X X X Extracts X X X X
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