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2014 (2) TMI 879 - AT - CustomsDenial of refund claim - Burden of proof - Refund claim for differential amount of Customs duty paid - Classification of goods determined in favour of assessee - Unjust enrichment - whether in the peculiar facts and circumstances of the case, the refund claim is hit by the doctrine of unjust enrichment or not - Held that:- both price of good supplied by the AVA, US and the price at which the goods are being sold in India are determined by supplier abroad. Respondent has to practically act in all spheres as per the direction of AVA, USA. Again this factor alone cannot lead to a conclusion that burden of duty has not been passed on to the final buyer of the goods - it is clear that cost of import including the import duty etc. is being considered as the cost of material by the respondent. Learned Counsel for the Revenue has also drawn our attention to the balance sheet as on 31 st March 2003, 31 st March 2004 and 31 st March 2005 wherein in the expenditure side respondent has shown the cost of goods old. Further schedule No. 14 of the said Balance Sheet, details how the cost of goods sold is calculated. It is seen from the said calculation that CIF value, Customs duty, Clearing and another incidental charges are considered as cost of goods sold. The disputed duty amount is insignificant in the over all scheme of pricing. In fact, post sale, respondent claims to pay 43% bonus to the distributors above certain level. It is perhaps for such reasons that wholesale prices were not changed and the disputed duty was considered as the cost of material sold. These goods are being sold as multilevel marketing. We also note that the dispute continued for more than three years and no prudent business man/organization would continue to bear incidence of higher duty without passing the same to the buyer of the goods. We are therefore of the view that respondents have failed to prove that incidence of duty disputed has not been passed on to the buyer of such goods - since no separate duty has been indicated in the invoices it has to be assumed that total burden of Customs duty has been passed on to the buyer of goods - In any case, whether the burden of duty has been passed to the buyer of goods is a matter to be examined in facts of each case, and observation in one case will be of little help in other cases until and unless all the facts are exactly same - respondent have not discharged the burden that they have not passed on the full incidence of duty to the buyer of such goods - Decided in favour of Revenue.
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