TMI Blog2014 (9) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... d be accepted. To deny what was paid and has to be refunded by law to the said person is not fair, just and equitable. - Refund allowed - Decided in favor of assessee. - CUS. A.C. No. 20 of 2013 - - - Dated:- 23-10-2013 - Sanjiv Khanna and Sanjeev Sachdeva, JJ. Shri Srinivas Kotni, Advocate, for the Petitioner Shri Rahul Kaushik and Sumit Gaba, Advocates, for the Respondent. ORDER By an order dated 26th July, 2013 the following substantial question of law was admitted for hearing in this appeal which arises out of the Customs Appeal No. 411/2008 decided by the Customs, Excise and Service Tax Appeal Tribunal ( Tribunal , for short) on 30-10-2012 : Whether the Tribunal was right in holding that the appellant is not entitled to refund of CVD as the appellant has failed to meet the prescribed requirements. 2. We shall be referring to the order of Tribunal in detail subsequently. First, the facts which are relevant may be first noticed in brief. 3. The appellant a manufacturer of motorcycles had imported a consignment of components for motorcycles. It is an accepted position that nil, Countervailing Duty (CVD) was payable on the said consignment as per N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnished information asked for. During the period 29th March, 2004 to 12th January, 2005, the appellant wrote numerous letters seeking refund but there was no positive response. On 21st September, 2005, the appellant in addition to the documents mentioned above submitted (i) indemnity bond (ii) affidavit to the effect that they amount claimed as refund had not been sanctioned (iii) copy of the audited balance sheet of the relevant period (iv) self-attested invoice/packing list/bill of entry (v) copy of Chartered Accountant Certificate to the effect that incidence of tax had not been passed to third parties. Thereupon, the appellant was asked to furnish copy of sale invoices and comparative sheet containing prices of vehicles both before and after import. These details and invoices were furnished vide letter dated 6th December, 2005. 5. The Assistant Commissioner of Customs (Refund), however, rejected the claim of refund vide order dated 1st March, 2006 on the ground that the appellant had not been able to satisfy and meet the burden cast upon them. The refund, it was directed, should be credited to the Consumer Welfare Fund as per the provisions of Section 27(2) of the Customs Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants and that was shown to the appellate authority but denied. Nothing was specifically brought to our notice. 7. Tribunal being final court of fact we made every effort to examine whether the appellant was denied justice. Once we do not find evidence overruling unjust enrichment, it is difficult to impeach the first appellate order. This calls for upholding the first appellate order for which appeal is dismissed. (Emphasis supplied) 8. As clearly noticeable from the aforesaid order, the Tribunal has failed to examine the documents and papers which were filed by the appellant before the adjudicating authority, i.e. Assistant Commissioner of Customs (Refund). We have specifically noted the papers and documents which were filed by the appellant before the said authority which included the balance sheet for the relevant period, Chartered Accountant certificate regarding passing of incidence of CVD to the customers/buyers, certificate of the appellant and affidavit, as well as self-attested copies of invoices/packing list etc. It is quite noticeable that the factual matrix of the case and documents have not been examined by the Tribunal and they have referred to the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erits to be set aside. 10. Noticing the above facts, at one stage, we were inclined to remand the matter to the Tribunal for fresh decision but there has been extraordinary delay and peculiar facts have compelled and prompted us to examine the documents on record to ascertain whether the appellant has discharged the burden as per Section 28D of the Act. This is the third round of litigation. The appellant had filed a refund application dated 11th August, 1997, which was rejected on 5th March, 1998. This order was set aside and the matter was remanded to the adjudicating authority by the Commissioner (Appeals) vide order dated 2nd September, 1998. In the second round again, the Assistant Commissioner (Refund) rejected the application of refund. The appellant did not succeed before the Commissioner of Customs (Appeals) but finally succeeded before the Tribunal on 3rd February, 2000. We have noted the facts relating to the third round. The Assistant Commissioner of Customs (Refund) rejected the claim for refund vide order dated 1st March, 2006, nearly six years after the order of the Tribunal dated 3rd February, 2000. By this order dated 3rd Feb., 2000, it was held that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement is also made in the annual report and the balance sheet which have been placed on record. The appellant has also filed a copy of the balance sheet for the period 31st March, 1998 in support. The details of the excise duty claim as receivable on 31st March, 1998 as detailed in the balance sheet was thus placed on record. The appellant had filed a certificate from the Chartered Accountant certifying that there was no change in the cost of the motor cycle for the last one year and hence there was no involvement of unjust enrichment and no Modvat has been claimed against the amount of ₹ 22,34,700/-. 12. The learned counsel for the respondent, on the other hand, relies upon Section 28D of the Act and submits that the appellant has not furnished and complied with Section 28C, by specifically indicating in the sale invoice the amount of duty included in the price of the goods as was sold. The counsel relies upon the decision of the Supreme Court in Union of India v. Solar Pesticides Pvt. Ltd and Anr., (2000) 2 SCC 705 = 2000 (116) E.L.T. 401 (S.C.) and Commissioner of C.Ex., Mumbai-II v. Allied Photographics India Ltd., 2004 (166) E.L.T. 3 (S.C.). 13. Section 28D st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o its dealers. On the first point, NIIL conceded in the earlier proceedings before the High Court that it had passed on the duty burden to its distributor M/s. AGIL. Therefore, the only question which we are required to decide is - whether M/s. AGIL in turn had passed on the duty burden to its dealers as alleged. In the present case, it was argued on behalf of the Department before the authorities below that 20% of the total price paid by M/s. AGIL represented the duty recovered by NIIL as a part of the sale price. It is important to note that M/s. AGIL was the sole distributor of NIIL. Therefore, it is highly improbable for a distributor to incur cost of purchase which included 20% element of duty in addition to the purchase price without passing on the burden to its dealers. From the record it appears that during the disputed period 1974 to 1984, M/s. AGIL was in trading which further supports the above improbability. In the present case, there is no material placed on record by M/s. AGIL as to how it had accounted for the cost of purchase in its books and the accounting treatment it gave to the said item at the time of payment of the purchase price. No record as to costing of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments. They are not applicable to the facts of this case. In the present case, we are concerned with the distributor buying the products from the manufacturer and reselling them to its dealers. Hence, the cost of purchase is a relevant factor. The facts of the cases before the Tribunal deal with sale by manufacturer to the consumer. They deal with the assessees invoice bearing a composite price. They are the cases which dealt with the claim of refund by the manufacturer. They did not deal with claim of refund by the buyer. Hence, they have no bearing on the facts of the present case. 18. Before concluding, we may state that uniformity in price before and after the assessment does not lead to the inevitable conclusion that incidence of duty has not been passed on to the buyer as such uniformity may be due to various factors. Hence, even on merits, the respondent has failed to make out a case for refund. Since relevant factors stated above have not been examined by the authorities below, we do not find merit in the contention of the respondent that this Court should not interfere under Article 136 of the Constitution in view of the concurrent finding of fact. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtion. The assertion should be objectively examined. Details and particulars if required should and can be ascertained and verified. Authorities may be justified and ask for documentation and details. In the present case the appellant has furnished relevant documents and materials which demonstrate and prove their claim that they had not passed on the incidence of CVD on the buyers. Reliance is not based upon the certificate alone. We would like to reproduce the observations of the Supreme Court in Solar Pesticides Pvt. Ltd. 21. Learned Counsel for the respondent had also contended that in cases of captive consumption of imported goods, it would be impossible for the assessee to establish whether the duty component has been passed on to the buyers of the finished products or has been borne by the importer himself. Difficulty in proving that the incidence of the duty borne by the importer has not been passed on to the purchaser of the finished product can be no ground for interpreting Section 27 differently. It is not possible that in no case will an importer not be able to prove that the incidence of the duty imposed on the imported raw material has not been passed on to any ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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