TMI Blog2021 (3) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon ble Apex Court held that the assessee had not passed on the burden of the customs duty to its customers. This finding is a finding of fact based on evidence which does not call for any interference. Appeal allowed - decided in favor of appellant. - Customs Appeal No. 40018 of 2020 - Final Order No. 40714/2021 - Dated:- 13-1-2021 - Hon ble Ms. Sulekha Beevi C.S., Member (Judicial) And Hon ble Shri P. Anjani Kumar, Member (Technical) Shri Prasad Paranjape, Advocate Shri S.Balakumar, AC (AR) ORDER Per: Sulekha Beevi C.S The issue involved in this appeal is whether the Commissioner (Appeals) is correct in holding that the appellant is not entitled to the refund of Customs duty for the reason that they have not passed the test of unjust enrichment. The Commissioner (Appeals) vide the order impugned herein directed to recover the alleged erroneously refunded amount from the appellant by allowing the appeal filed by the department. 2. The brief facts of the case are that the appellant had imported 78 BMW Cars, from their parent company in Germany, BMW AG, in the month of May 2009, under 7 Bills of Entry. After the import was effected and goods w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal for adjudication and vide his Order-in-Appeal dated 13.09.2019 allowed the Revenue s appeal and rejected the refund sanctioned to the appellant. Hence the present appeal. 4.1 On behalf of the appellant Ld. Counsel Shri Prasad Paranjape appeared and argued the matter. 4.2 It is submitted by the learned counsel that the Commissioner (Appeals) has rejected the refund on the ground that the Appellant has not shown customs duty separately on the sale invoices as required under section 28C of the Customs Act, 1962 and therefore the presumption of Section 28D of the Customs Act, 1962 of having passed on the duty incidence will operate against the appellant. 4.3 Ld. Counsel submitted that in the present case sale is effected much after goods were cleared for home consumption and hence the appellant could not have shown Customs duty on the sales invoices at the stage of import. Further presumption of Section 28D is a rebuttable presumption and once the assessee rebuts the same, then the onus shifts to the Department to prove it otherwise. The assessee has rebutted the presumption by several means viz. credit notes, revised invoices, sales invoices to dealers, accounting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .07.2010 specifically gives details of records verified. Without proving these evidences to be false, Commissioner (Appeals) ought not to have disregarded the Chartered Accountant certificate. 4.8 In any case, the SAD refund claimed by the Appellant is sanctioned, which includes the excess duty paid element and the same is not challenged by the Department. When for part of the claim, Department found the Appellant in compliance with the principles of unjust enrichment, then they can't object the grant of refund for the other part. 4.9 Further, even the CBEC circulars and various case law support the aforesaid submissions that the Appellant is right in relying on the Chartered Accountant certificate to prove that they have not passed on the incidence to any person and to contend that not indicating the duty on the sale invoice is not prejudicial to grant of refund. He relied upon the following decisions : 1) Commissioner of Central Excise, Madras Vs Addision Co. Ltd. - 2016 (339) ELT 177 (SC) 2) Commissioner of Customs, Bangalore Vs Apple India Pvt. Ltd. - 2014 (301) E.L.T. 675 (Tri. - Bang.) [Affirmed by Karnataka High Court - 2014 (309) E.L.T. 29 (Kar.). Also, af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Import Cost (AC + higher duty) is ₹ 1,06,19,073/-. The customs duty paid for this Bill of Entry is ₹ 12,67,292/-.The possible sale price would then be ₹ 93,51,781/ - whereas the actual sale price is ₹ 81,61,556/-. The credit notes are also filed along with appeal. In page 64, Credit note dt. 05.06.2009 issued to the appellant by the foreign supplier is enclosed. In page 173, the revised invoice issued by the foreign supplier is enclosed. Page 293 shows a sale invoice issued by the appellant to the dealer. Further in page 308, the Chartered Accountant certificate is also enclosed. It is certified by the Chartered Accountant as under : 2. This is further certify that M/s.BMW India (P) Ltd has paid Excess Custom Duty against the 70 BMW Cars cleared under 7 Bills of Entry and the burden of Excess Custom duty has not been passed on by the importer M/s.BMW India Private Limited, to the buyers and the same amount has not been included in the selling price of the imported goods on sales and that they fulfill the requirement of Unjust enrichment. 3. It has been explained to us that the Domestic Selling Price of the product is fixed on the basis of the Standar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 7 Bills of Entry after duly verifying all the documents purchase orders, Invoices, credit notes etc., and certified that all the documents including purchase orders, invoices, credit notes etc., have been thoroughly scrutinised and found them to be in order. All the seven Bills of Entry have been finally re-assessed by Asst.Commissioner of Customs (Group 5B C) on 16.06.2010 making necessary endorsement on the face of Bills of Entry. The Group 5B C have prepared a detailed working sheet to ascertain the total duty payable on the 70 cars imported under the seven bills of entry and it is seen that the total duty payable on the basis of revised invoices/credit notes is INR : 232,813,684 96. The Group has confirmed that the importer has already paid total INR : 351,480,979.39. The importer has already claimed a refund amounting to INR : 26,231,510.53 being the SAD of 4% paid by them at the time of clearance of the cars. The Group has also confirmed that the excess duty that has been paid by the importer after deducting the SAD already claimed by them works out to INR : 92,435,783.90 (Rupees Nine Crores twenty four lakhs thirty five thousand seven hundred eighty three and paise ni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he refund claim to the extent of time limitation is in order as the claim was filed on 23.06.2010, within the stipulated time period of six months from the date of re-assessment. In terms of the Section 27 of the Custom Act, 1962, the bar of unjust enrichment is applicable to all the refund claims. It is the onus of the claimant to prove that the full incidence of such duty has not been passed by him to any other person and is totally borne by him. 10. From the above discussions made by the original authority, and also after perusing the documents enclosed in the appeal, we have no hesitation to agree with the decision of the refund sanctioning authority that incidence of customs duty has not been passed on to another. 11. In the case of CC New Delhi Vs Organan (India) Ltd. 2008 (231 ELT 201 (SC), similar issue came up for consideration wherein the Hon ble Apex Court held as under : 2. Assessee filed ten Bills of Entry claiming classification of Agglutinating Sera for the detection of human chorionic gonadotrphin in urine under Sub-Heading 3002.90 of the First Schedule to the Customs Tariff Act. That under Notification No. 208/81-Cus., dated 22-9-1981, goods in ques ..... X X X X Extracts X X X X X X X X Extracts X X X X
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