TMI Blog2018 (6) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... K. Veerabhadra Reddy, JC (AR) for the Respondent ORDER The issue in all these appeals being the same, they were heard together and are disposed by this common order. 2. Brief facts are that the appellants herein, M/s. Tata Teleservices Ltd. imported consignments of fixed wireless telephone during different periods from November 2002 to March 2005 vide various Bills of Entry. At the time of filing the Bills of Entry, the appellant claimed classification of these products under sub-heading 85252017 of Customs Tariff Act, 1974 r/w Customs Notification No.. 21/2002 (Sl. No. 313). As the department disputed the applicability of the benefit of notification to the products in respect of past consignments also, the appellant paid the duty under protest and cleared the consignments and challenged the assessment orders. 3. The dispute regarding the benefit of exemption under Sl.No. 313 of Notification No. 21/2002 to fixed wireless telephones ultimately reached the Apex Court and vide judgment dated 13.12.2005 reported in 2006 (194) ELT 11 (SC), the Hon'ble Supreme Court held that the product is eligible for exemption under the notification and quashed the assessments to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record would conclusively establish that the appellants have not passed on the incidence of duty to any other person. The appellants have not sold the imported fixed wireless telephones to anybody including the telecom service recipients/consumers. The appellants being owners of the said equipment have used the same for providing their services. It is very well on record that the appellants have not sold the imported goods and therefore there is no question of passing on the incidence of customs duty to any other person. 7.2 The appellant imported the items as capital goods for providing telecom services to their customers. Thus, the only income generated by the appellant is through the telecom services provided by them. The charges recovered by the appellants from their customers for providing the telecom services is governed and regulated by TRAI. The appellant cannot collect any amount over and above the charges fixed by TRAI and therefore the question of passing of burden of customs duty does not arise. 7.3 He submitted that the Commissioner (Appeals) has directed the adjudicating authority to examine the issue of unjust enrichment on the basis of the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zing the assessment thereafter was only a technical requirement. This is admitted by the department in Order-in-Appeal No. 3/2010 dated 4.1.2010 wherein the Commissioner (Appeals) has held that the appellants though have lodged the claim of refund before the finalization, the act of finalization of assessment was only a formality as it involved only arithmetical calculations pursuant to the Apex Court's judgment. The Commissioner (Appeals) held that the refund claim filed prior to the finalization of assessments were proper. On such score, the amendment brought forth later on 13.7.2006 ought not to have been pressed upon the appellant to remand the matter for examining the issue of unjust enrichment. 7.8 The refund claim having been filed by the appellant prior to 13.7.2006 merely because the department took a long time to process the application for refund, the right of the appellant could not be denied by subsequent amendment in the Act. He relied upon the decision in the case of Commissioner of Central Excise Vs. TVS Suzuki Ltd. 2003 (156) ELT 161 (SC). 7.9 The Id. counsel was fair enough to advert to the decision rendered by the jurisdictional High Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Id. AR submitted that without attending documents, the Chartered Accountant's certificate alone would not be sufficient for establishing that incidence of duty has not been passed on to another. 9. Heard both sides. 10. The details of the period involved, Bill of Entry and the amount involved as furnished by the Id. counsel for the appellant is given below: 11. Vide the orders impugned herein, the Commissioner (Appeals) has remanded the matter for examining the issue of unjust enrichment. The Id. counsel has taken various pleas which have been narrated in detail in the above paragraphs. The Hon'ble High Court in the case of Scientific Instruments (supra) observed as under:- 9. Learned counsel appearing for the importer/assessee submitted that having regard to the above said observation of the Apex Court in the case of Mafatlal Industries Ltd., (supra) the observation by the Tribunal in paragraph 6.2 has to be set aside. The Tribunal pointed out that the order of the Tribunal dated 9-7-2007, the provisional assessment finalized in the year 2000 was set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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