TMI Blog2018 (11) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed - decided in favor of appellant. - C/20837/2015-SM - Final Order No. 21601/2018 - Dated:- 11-10-2018 - MR. S.S GARG, JUDICIAL MEMBER Shri M.S. Nagaraja, Adv For the Appellant Dr. J. Harish, Dy. Commissioner (AR) For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dt. 24/12/2014 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has accepted the appeal of the Department and set aside the order passed by the Assistant Commissioner of Customs. 2. Briefly the facts of the present case are that the appellant had entered into Sale Contract dt. 13/03/2010 with M/s. KOWA Company Ltd., Japan for export of iron ore fines in bulk. Accordingly, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of shipping bills dt. 18/03/2010 was provisional in terms of Section 17 of the Customs Act pending receipt of original documents and chemical examination report. On finalization of the assessment, the Assistant Commissioner sanctioned the refund after examining that the excess customs duty paid by the appellant has not been passed on to the buyer. Learned counsel further submitted that on an identical issue, this Tribunal in the case of Dream Logistics Company India Pvt. Ltd. others Vs. CC, Mangalore (Cus) [2017- TIOL-1918-CESTAT-BANG] has disposed of a bunch of appeals by allowing the appeals of the assessees. He further submitted that present case is also covered in favour of the assessee by the decision of the Andhra Pradesh High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly the sale contract, final invoice, bank certificate of export and realization issued by the bank, it is clearly proved that he has not charged any customs duty from the buyer. It is further noted that the export in the present case is in accordance with internationally accepted commercial terms and a copy of the contract has also been brought on record which contain the terms and conditions and one of the common condition I find in all the sale contracts is that the duty or tax in the country of origin or in the country of destination to be imposed during continuance of this contract increasing the cost of ore to be delivered herein. The same shall be paid by the seller to the extent imposed by the country of origin and by the buyer to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usal of the said provision would show that the importer will have to satisfy the authorities while seeking such a claim. In other words, until and unless the importer satisfies the authorities with relevant documents, indicating the fact that it has paid the excess amount and the duty has not been passed on to the customers, such a claim cannot be accepted. Further Section 28C and D of the Act provide for price of goods to indicate the amount of duty paid thereon and presumption that incidence of duty has been passed on to the buyer. Therefore, until the contrary is proved, there is a presumption provided under the statute that the duty has been passed on to the buyer. The above said provisions would clearly establish the fact that it is fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
