TMI Blog2008 (5) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, for the Appellant. Shri P.K. Katiyar, SDR, for the Respondent. [Order] - The Tribunal, vide Order No. A/1707/C-IV/SMB/2007 dated 3-12-2007 [2008 (224) E.L.T. 264 (T)], rejected the appeal filed by the appellant ex parte on merits as the appellant did not appear for hearing on 3-12-2007 in spite of notice. 2. The appellant, in his ROA application, have stated that he received the Tribunal's intimation for hearing well in time. However, since in those days his regular authorized representative, Shri K.L. Rekhi, Consultant, was not being allowed to appear before the Tribunal because of introduction of Section 129(6) of the Customs Act, 1962, he decided to appear before the Bench himself on 3-12-2007. 3. He further stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal has the power under Rule 41 to restore the appeal rejected ex parte even on merit and "not to do so would be manifest injustice." 6. Shri K.L. Rekhi, Consultant, who has since been permitted by the Delhi High Court Stay Order to appear before the Tribunal, appeared before me on 24-4-2008 for hearing on the ROA application and reiterated what has been stated above. He also prayed that the appeal, if restored, may be heard on the same date since his being the outstation SSI unit can hardly afford multiple air journeys or overnight stay at Mumbai. 7. The learned SDR did not have any objection for restoration of the appeal. After hearing the learned authorized representative of the appellant at length, I am satisfied that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Steel Forgings v. CC, Mumbai cited and relied on before him by the appellant. This judgment had held that in the case of non-sale of imported goods, there was no buyer of such goods and, therefore, Section 28D raising the presumption of unjust enrichment was not applicable and the case of the importer-user was immediately covered by the exception clause (a) of the first proviso to Section 27(2) and hence the refund claim was payable. 11. The Commissioner (Import), however, reviewed the Assistant Commissioner's Order, inter alia, on the ground of unjust enrichment. In review appeal, the Commissioner (Appeals) remanded the matter to the Deputy Commissioner of Customs for examining the bar of unjust enrichment. 12. The Deputy Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding any reason as to why he does not agree with his predecessors and why he cannot obey the judgments of the Tribunal, his superior authority. (iii) More strange is the fact that while the correct facts had been placed before both the lower authorities in the form of a detailed reasoned Certificate and further Verification Report prepared by his Chartered Accountant, yet both the authorities make contrary assertions without disclosing any basis therefor, merely to pass a pro-revenue order. Thus, while the Deputy Commissioner records that he maintained pre-import prices by taking a dip in his profitability, the correct fact is, as stated in the C.A. Certificate and Report, that the role of the subject machine in the cost build up of fini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Commissioner (Appeals). 14. I find that the Chartered Accountant, in response to the query whether the customs duty initially paid @ 50% +2% + 10% on the impugned machinery imported in January, 1997 was passed on to the Customers or not, examined and audited the balance sheets, bills and books of account of the appellant for the relevant years 1996-97, 1997-98 and 1998-99 i.e. before and after import and furnished a certificate dated February 2, 2006 certifying that incidence of customs duty was not passed on to the customers. The certificate is detailed and exhaustive. It concludes as under: "Conclusion : The conclusion that emerges from the above facts is that there was neither any need for passing on to the customer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished with my certificate fully substantiate this position." 16. I also find that the Tribunal in the case of Commissioner of Customs and Central Excise, Mumbai v. Resham Singh and Co. Pvt. Ltd. reported in 2003 (156) E.L.T. 270 (Tri.-Mumbai) has held that the depreciation claimed under the income-tax provisions is distinct and separate from the claim for refund under the Customs Act.. Therefore, the incidence of duty cannot be held to be passed on to the customers merely on the ground that the importer has claimed depreciation under the Income-tax Act, 1961. The same views were reiterated in the Tribunal's decision in the case of Commissioner of Customs (Import), Mumbai v. Pudumjee Plant Laboratories Ltd. reported in 2006 (205) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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