TMI Blog2004 (3) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in accordance with the provision of Section 28D of Customs Act, 1962. "Further held that as per the provision of Section 28C of Customs Act, 1962 the sales invoice should indicate the amount of duty which will form part of the sale price at which goods are to be sold; but the above sale invoices do not show the amount of duty. In this view of the matter D.C. held that in terms of Section 28D the duty amount of Rs. 35.18 per pc. shall be deemed to have been passed in full to the above buyers to whom the Electronic Brick Games were solid for Rs. 46/47 per pc. inclusive of the duty amount of Rs. 35.18 per pc. thereby the cost of the goods would be Rs. 10.82 per pc. to account for the loss stated to have been incurred buy the importer accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt separately it was stated that the law does not permit to recover the refund of duty if the amount of duty element has already been passed to the consumer i.e. it prohibits unjust enrichment. In achieving this objective there are conditions but some of the conditions may be substantive, mandatory and based on considerations of the policy and some others may merely belong to the area of procedure. It would be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purpose they were intended to serve. The Supreme Court decision in Mangalore Chemicals - 1991 (55) E.L.T. 437 (S.C.) was cited to support this contention. (e) Directed the Appellant to produce the Income-tax Returns and the Balan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t been questioned by both the authorities below. Therefore non-filing 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. (d) 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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