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TMI Blog2014 (2) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent filed a refund claim for differential amount of Customs duty paid to the extent of Rs.7,61,06,909/- The Deputy Commissioner vide his order dt. 14.11.2006 held that the said amount was required to be refunded. However, the refund claim was adjudicated to be hit by the bar of unjust enrichment and therefore adjudicating authority directed the refund amount shall be credited to the Consumer Welfare Fund in terms of Section 27(2) of the Customs Act, 1962. The respondents filed an appeal against the said order before Commissioner (Appeals). The Commissioner (Appeals) vide the impugned order (dated 19.10.2007) allowed the appeal of the respondents following the ratio of the Tribunal decision in the case of Girish Foods & Beverages (P) Ltd. Vs. CCE reported in 2007 (211) ELT 388 (Tri. Mum.), Revenue is in appeal against the said order. 2. In Appeal No. C/37/2008-Mum. respondents had imported and cleared vide 10 ex-bond bills of entry four products, out of which three are same as in Appeal No. C/16/08-Mum. and fourth product is Aloe Bits N Peaches. These were also cleared on payment of duty under protest. Against the order-in-original relating to classification, respondent file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the disputed period. Hence the incidence of disputed duty had not been passed on to the consumers. Learned Counsel argued that this contention is also not acceptable for the reason that the certificates of the Chartered Accountants are not decisive. In this connection, Learned Counsel relied upon the following decisions of various Courts including the Tribunal: (i) In the case of India Agencies V/s. CC, Chennai- 2007 (212) ELT 507 (Tri-Chennai), in para 4 of its order, the Hon'ble Tribunal has held as follows: "4. ... The Chartered Accountant's certificates are certificated issued by professionals interested in their client (the refund-claimant) and such documents, per se cannot be accepted singularly and conclusively as evidence against the latter's unjust enrichment, though they could be corroborative evidence in a given case." (ii) In the case of GAIL INDIA LTD. V/s. CCE, Gwalior -2011 (264) ELT 393 (Tri-Del), in para 9 of its order, the Hon'ble Tribunal has held as follows: "9. ... Undoubtedly, the Chartered Accountant's certificate would be a corroborative piece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein the amount of duty paid on the goods, which amount forms part of the price of the goods. Such document is missing in this case. Any number of books of account or any certificate of Chartered Accountant would not be a substitute for sale invoice, which is the document expressly recognized under Section 28C. It is also pertinent to note that Section 28C is in the company of Section 28D under Chapter VA of the Act. It is under Section 28D that every person who has paid duty on any goods under the Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. The document specified under Section 28C is the means for such person to rebut the presumption created under Section 28D. The appellants have not succeeded in rebutting the presumption." 4.4 Learned Counsel further argued and took us through the Balance Sheets of the respondent-company for the years 2003-04, 2004-05 & 2005-06, to prove that the amount of duty has been shown as expenditure and not receivables. This also indicates that the incidence of duty has been passed on to the customers. Finally, it is submitted that the Balance Sheets do not show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. 2008 (222) ELT 511 (Guj.) [iv] Panihati Rubber Ltd. Vs. CCE 2001 (127) ELT 742 (Tri.-Cal.) [v] CCE Vs. Panihati Rubber Ltd. 2004 (172) ELT 310 (Cal.) [vi] CCE Vs. Panihati Rubber Ltd. 2006 (202) ELT 41 (SC) [vii] Nanda Devi Sharma Vs. CCE 2008 (228) ELT 154 (Tri. Del.) [viii] CCE Vs. Flow Tech Power 2005 (187) ELT 399 (Tri. Chennai) Affirmed by High Court in 2006 (202) ELT 404 (Mad.) 6. We have considered the rival submission. The issue to be decided in this case is whether in the peculiar facts and circumstances of the case, the refund claim is hit by the doctrine of unjust enrichment or not. We note that learned Advocate for the respondents have agreed to the settled principal that uniformity in the price/MRP before and after levy of a particular duty by itself cannot determine whether or not burden of duty has been passed on to the buyer of goods. 7. We also note that in the present case 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 direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs duty as the cost of material. The accounting system does not anticipate the said amount as receivable. We also note that the sales price of the goods is very high compared to disputed duty amount. 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. 8. We also note that Section 28D of the Customs Act reads as under: "SECTION 28D. Presumption that incidence of duty has been passed on to the buyer. - Every person who has paid the duty on any goods under this Act shall, unless the contrary is proved by him, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount of duty paid on the goods, which amount forms part of the price of the goods. Such document is missing in this case. Any number of books of account or any certificate of Chartered Accountant would not be a substitute for sale invoice, which is the document expressly recognized under Section 28C. It is also pertinent to note that Section 28C is in the company of Section 28D under Chapter VA of the Act. It is under Section 28D that every person who has paid duty on any goods under the Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. The document specified under Section 28C is the means for such person to rebut the presumption created under Section 28D. The appellants have not succeeded in rebutting the presumption." We are in total agreement with the above observation, 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. 9. Learned Advocate has quoted various case laws as mentioned in Para 5.5 above. We have carefully gone through all the case laws and we find that facts and circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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