TMI Blog2004 (11) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... Beliss India Limited filed a claim for refund for Rs. 34,46,472.70 with the Assistant Collector of Customs, Customs House, Kolkata on 11-10-2001 in pursuance of the Supreme Court s Order dated 31st July, 2000 against the Bill of Entry Nos. 1781 1780 both dated 18-4-84. The claimant is the manufacturer of Stream Turbines. They imported Prime Stainless Steel Rolled Special Blade Sections in Straight Lenghts in Profile leave. The Assistant Collector vide his Order-in-Original dated 6-8-83 and 15-4-83 classified the above goods under S/H 73.33/40(2) and duty was to be 300% whereas the importer claimed classification under S/H 73.15. The claimant filed an appeal before Commissioner (Appeals) which vide his Order-in-appeal dated 29th June, 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of consignments and appeals were preferred against such orders. When such assessments were finalized in terms of the judgment of the Hon ble Supreme Court, the amount paid by the appellants was adjusted against the duty finally assessed and the excess payment became refundable in terms of the final assessment itself without the requirement to file any independent claim for refund. Merely because the appellant had requested for such refund in writing after the Hon ble Supreme Court s Order would not make it an independent claim for refund. Section 18 of the Act contains specific provisions relating to provisional assessments, finalisation thereof and the consequences of such finalisation. If on finalisation of the provisional assessments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals) that only cost analysis of the final product is acceptable evidence to show that the incidence of the duty had not been passed on is wholly erroneous. He cites in the case of Commissioner of Central Excise Customs v. Chariot Cement Company - 2003 (158) E.L.T. 521 wherein this Tribunal was pleased to hold that where prices charged from the buyer remain constant irrespective of the fact whether the manufacturer was paying duty at higher or lower rate, that was sufficient to show that the incidence of duty had not been passed on to the buyer. In the instant case, the appellant had adduced such evidence before the authorities below but they have arbitrarily ignored the same. The appellant could not produce any document relating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in January, 1984, the price of turbines was negotiated by considering the duty applicable under Heading No. 73.15(1) only and such price did not include any duty sought to be demanded by the Customs authorities under Heading No. 73.33/40(2). He submits that the price of 600 BHP turbines were charged to Rs. 4,50,000/- on 15th March. 1983, the price of Rs. 4,25,000/- was charged for the same Steam Turbine on 5-6-84 and the price of Rs. 4,50,000/- was charged for 800 BHP Steam Turbine. He, therefore submits that there is no manner of doubt that the appellants did not consider the higher duty under Heading No. 73.33/40(2) in negotiating its prices. He, therefore, submits that the appellant was quite confident of success, so, he did not charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kindly be allowed. 5Ld. SDR, Shri Kar submits that in view of the Hon ble Supreme Court s decision in the case of M/s. Mafatlal Industries Ltd. : 1997 (89) E.L.T. 247 (S.C.), the admissibility of the claim will be governed under Section 27 of the Customs Act because it arose on account of re-assessment and it is applicable in the present case also. He further submits that in the present case, the impugned goods had been captively consumed for manufacture of final product i.e. turbine. He also submits that in view of Hon ble Supreme Court s decision in the case of M/s. Solar Pesticides Pvt. Ltd. - 2000 (116) E.L.T. 401 (S.C.), the principle of unjust enrichment shall be applicable. He submits that the Hon ble Apex Court held in M/s. Solar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nrichment will apply and the person responsible for paying the import duty would not be entitled to get the refund because of the plain language of Section 27 of the Customs Act. In view of the above decision, the burden was cast on the appellants to prove that the incidence of duty has not been passed on to the buyer or any other person. The contention of the ld. Advocate for the appellants is that where prices charged from the buyer remain constant irrespective of the fact whether the manufacturer was paying duty at higher or lower rate, that was sufficient to show that the incidence of duty had not been passed on to the buyer is not tenable. We also find that the Hon ble Supreme Court in the case of Commissioner of Central Excise, Mumbai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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