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M/s. Shoppers Stop Ltd. Versus The Commissioner of Customs (Exports) , Customs, Excise and Service Tax Appellate Tribunal

2017 (7) TMI 11 - MADRAS HIGH COURT

Unjust enrichment - refund claim - Whether the Honourable Tribunal is right in holding that chartered accountant certificate is not conclusive evidence ignoring the fact that the appellant company produced not only the chartered accountant's certificate but also the profit and loss account and balance sheet to establish that there was no unjust enrichment if the refunded amount is paid to the appellant company? - rebuttal of presumption - section 28 - Held that: - It is well-settled that the tra .....

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verified. If, that was the position, then, we see no reason why the Assessee could not produce the relevant invoices, i.e., supporting documents before the Tribunal, despite opportunity having been given, in that behalf - appeal dismissed - decided in favor of Revenue. - C.M.A. No. 2698 of 2015 - Dated:- 12-6-2017 - Rajiv Shakdher And R. Suresh Kumar, JJ. For Appellant : Mr.Hari Radhakrishnan For Respondents : Mr.V.Sundareswaran JUDGMENT 1. This is an appeal preferred by the Assessee against th .....

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unjust enrichment if the refunded amount is paid to the appellant company ? 2) Whether the Honourable Tribunal is right in rejecting the evidence produced by the appellant peremptorily as against the requirement of law that where the presumption in law is rebutted by evidence, the burden is on the respondents to adduce evidence and reasons for rejecting the evidence produced by the appellant ?" 3. Briefly, the issue, which arises in this case is, whether the Assessee has rebutted the presu .....

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there is a presumption qua the person, who has paid duty on any goods under the Act, that he has passed on the full incidence of such duty to the buyer of such goods, unless the contrary is proved by him. 4. In the instant case, there is no dispute that the Assessee was entitled to refund of duty amounting to ₹ 18,91,127/-. This order came to be passed in favour of the Assessee by the Assistant Commissioner on 21.01.2008. 4.1. The said amount came to be quantified, after this Court, via a .....

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eviable, at the relevant point in time, was 4% and for others, the correct rate of duty was 8%. 4.3. It is, in this context, that the Assessee had requested the Assistant Commissioner of Customs, to reassess the duty, vide communication dated 12.08.2006. Since, there was a refusal to reassess duty, as indicated above, the Assessee approached this Court, whereupon, the order dated 19.11.2007, was passed directing reassessment of duty. 4.4. Consequently, as alluded to above, the order dated 21.01. .....

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268/- was to be credited to the Consumer Welfare Fund of India and, in so far as the balance amount was concerned, i.e., ₹ 2,93,859/-, he concluded that the refund application was not properly filed and, according to him, refund was prematurely claimed. 4.6. Being aggrieved, the Assessee preferred an appeal to the Commissioner of Customs (Appeals). The said appeal was rejected vide order dated 03.12.2009. 4.7. The Assessee carried the matter further by way of appeal to the Tribunal. The Tr .....

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elevant period, as well as the ledger account; and (ii) That having regard to the evidence placed on record, the burden of proof shifted, in as much as the statutory presumption obtaining against the Assessee by virtue of provisions of Section 28-D of the Act stood rebutted. 5.1. In support of his submissions, learned counsel placed reliance on the judgment of the Division Bench of the Delhi High Court in Hero Motocorp Limited V. Commissioner of Customs (Import and General), 2014 (302) E.L.T. 50 .....

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documents, which included sales invoice, had not been placed on record by the Assessee, despite several opportunities being given, in that behalf, by the authorities below. 7. Before proceeding further in the matter, we must indicate that the learned counsel for the Assessee concedes that the sales invoices, pertaining both to the period prior to the import and that which followed thereafter, were not placed on record. 8. Given the aforesaid facts, what is required to be ascertained by us, is, .....

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time a transaction was entered into between the Assessee and its customers. 8.2. It is well-settled that the transaction adverted to in a ledger or in a Balance Sheet can only, at best, be a secondary evidence. The primary evidence would be the underlying documents, such as Bills, Sales Invoices, etc. In so far as the entries in the books of accounts and ledgers are concerned, they do not get proved by themselves even those entries require proof. See M/s.Superior Crafts and others V. Sudhir Gupt .....

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see had placed on record, the primary documents/evidence, then perhaps, one could have said that the onus of proof had shifted on, to the Revenue, and if, the Revenue, thereafter, proceed to deny the refund, it would have to place on record the relevant documentary evidence to demonstrate that the incidence of duty had passed on to the customers of the Assessee. 8.4. Furthermore, we notice that the certificate of the concerned Chartered Accountant's firm only states that a sum of ₹ 18, .....

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