9911796707
TMI Blog2004 (4) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... ties were of the view that they had in fact imported cars in terms of Rule 2(a) of the Rules. For Interpretation of the Schedule to the Customs Tariff Act, the benefit of Notification No. 72/93 was denied and they were asked to pay an additional duty @ 15%; that the Appellate Tribunal vide Final Order Nos. 745 to 769/96-B, dated 10-9-96 [CC, Bombay v. Maruti Udyog Ltd.] and [Sipani Automobiles Ltd. v. CC, Bangalore] 1996 (16) RLT 646 (CEGAT) held that they are eligible for the benefit under Notification No. 72/93-Cus., that immediately after the receipt of the Final Order, they filed the refund claim on 28-9-1996 for refund of the Customs duty paid in excess by them and the redemption fine deposited by them; that the Assistant Commissioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... components/parts is indirectly passed on to the consumer without doubt and hence incidence of duty paid had been passed on to the buyers and that mere Certificate of Chartered Accountant is not sufficient to discharge the onus cast to establish that duty burden has not been passed on. 3.1. The learned Advocate submitted that the refund of duty has been claimed with regard to the relevant Bills of Entry relating to the imported materials; that the Final Order dated 10-9-96 passed by the Tribunal mentions that "for Customs classification purposes, the goods have to be deemed to be 'cars' as a result of the 'legal fiction' but for the practical purposes, they remain components, assemblies or sub-assemblies and M/s. Sipani Automobiles are ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question whether the Certificate given by Chartered Accountant is sufficient evidence in support of their claim that the incidence of duty had not been passed on to customers. Reliance has also been placed on the decision in the case of Continental Chemicals India Ltd. vs. CCE, Ghaziabad, 2003 (152) E.L.T. 183 (T). Finally the learned Advocate submitted that the excess duty paid by the Appellants @ 15% has been treated by them as amount receivable by the Company and the same was reflected in the Balance Sheet as "Loans and Advances." He had referred to the Balance Sheet of the Appellants for the year ended 31-3-1996 wherein clearly the impugned amount has been shown as deposit with Customs and mentioned that the Chartered Accountant has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtmental Representative further, submitted the onus of proof is on the Appellant to prove that the incidence of duty has not been passed on to the consumer; that they have not discharged this onus; that they have not been able to explain as how they had manufactured 143 cars when they had cleared 140 car bodies along with other components and as such they had not related the number of car manufactured from the imported materials with reference to body, engines, gear box, components, etc. in detail; that the Appellants have also not explained the overhead per car which is highly excessive; that no details of the so-called overheads has been furnished by them; that they had incurred loss while selling the cars is immaterial to arrive at a con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dispute that the refund of duty has arisen consequent to the Final Order dated 10-9-96 passed by the Appellate Tribunal in the favour of the Appellants. The duty paid by them in excess under two Bills of Entry in question were not included in the matter before the Tribunal. This has been fairly admitted by the learned Advocate for the Appellants. Thus the assessment of duty on the said two Bills of Entry had attained finality as the same had not been challenged by the Appellants in the appropriate appellate forum. So long as the assessment stands the duty can not be claimed as refund on the ground that in respect of similar Bills of Entry, the Tribunal has extended the benefit of Notification No. 72/93. We, therefore, reject the Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces" and has contended that this goes to show that the incidence of duty was not passed on to their customers. In the case of Jaipur Syntex Ltd. v. CCE, Jaipur, supra, the Tribunal has held that the Appellants are entitled to receive the refund amount for having not passed on the incidence of duty to the customers as "the Appellants have produced all the balance sheets….Wherein the disputed amount has been shown as claim receivable," and "all the figures had been duly certified by the Chartered Accountant." Following the said decision, we hold that the Appellants are entitled to get the amount of refund sanctioned to them by the Adjudicating Authority.
8. The Appeal is thus partly allowed.
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