TMI Blog2008 (12) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... d claims to the Respondents i.e. M/s. Bhagwan Electro Photo Copier, Gurgoan and M/s. B.E. Office Automation Pvt. Products Ltd., New Delhi 2. Since the issue involved in all the six appeals are common, these appeals are being taken up for disposal by the Common order. 3. Heard both the sides and perused the records. 4. The issue involved is whether unjust enrichment is involved in these cases. 5. The facts of the cases are that the respondents herein imported reconditioned Mainframes of photocopiers and filed Bills of Entry for their Clearance for home consumption. The goods, on examination, were found to be old and used. It was also reported that the goods have the essential features of photocopiers without constituting a full photocopier. 6. It was held by the Assessing Group of the Department that : (i) The declared value of the mainframes is low and is liable to be enhanced; (ii) The old and used mainframes of photocopiers, being in the nature of assembly/sub-assembly of components for photocopiers, cannot be freely importable under Sr. No. 9009909010 of ITC (HC) classification; (iii) As per the examination report, the mainframes have the essential feat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue filed appeals before the Commissioner of Customs (Appeals) on the ground that the adjudicating authority did not examine the provisions of unjust enrichment and that the documents like the Chartered Accountants certificate relied upon without any substantiating supporting documents and on the ground that it has been held in various decisions reported in M/s. A.K. Enterprises v. CC (Port), Kolkata [2006 (199) E.L.T. 67 (Tri.-Kol.); M/s. Merimex and Co. v. CC Ex., Allahabad [2004 (174) E.L.T. 216 (Tri.- Delhi)]; M/s. Eltech Enterprises v. CC, Mumbai [1999 (112) E.L.T. 877 (Tri.)] that the Chartered Accountant's certificate not supported by relevant sales bills or documents relating to placing order and terms of supply, is not sufficient to show that the burden has not been passed on to any other person, with a prayer to remand the case back to the original adjudicating authority. 13. The Commissioner of Customs (Appeals), vide the impugned Orders, rejected the said appeals stating that since the question of passing of burden to the ultimate buyer of the goods does not arise, presumption of unjust enrichment under Section 28D of the Customs Act, 1962 would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the fact that prayer was made only to remand the case to original authority to re-determine the matter. 15. In addition to the above, the learned SDR placed reliance on the following case laws : (i) HCL Office Automation Ltd. v. CCE, Meerut-I [2005 (183) E.L.T. 106 (Tri.-Del.)] in which it was held that the balance sheet and the Chartered Accountant's certificate brought on record, provided no details as to whether the assessee's sale price includes the amounts being claimed as refund. Since the assessee sought to adduce further evidence on that score, the matter was remanded. (ii) Hanil Era Textiles Ltd. v. CCE, Raigad [2008 (225) E.L.T. 117 (Tri.-Mumbai)] in which the refund was rejected on the ground that the Chartered Accountant's certificate produced is not sufficient to discharge the burden cast upon the appellants. (iii) Stay Order No. S/626/08/CSTB/C-I, dated 4-11-2008 [2009 (235) ELI. 710 (T)] of the Mumbai Tribunal in the case of M/s. Larsen and Toubro Ltd. ; in which it was held that the amount shown as recoverable in the balance sheet and the C.A. certificate dated 13-7-2006 are not the conclusive proof of having not passed on the incidence of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 28 of the Customs act, 1962 for recovery of the refund erroneously paid, the present proceedings are not valid and the Revenue's appeals are liable to be dismissed on this ground alone. (ii) The learned Counsel also relied upon the following case laws : (a) Commissioner of Customs, Air Cargo Unit, New Delhi v. Maruti Udyog Ltd [2003 (155) E.L.T. 523 (Tri.-Del.)] in which the bar of unjust enrichment was held to be not applicable and the refund claim was allowed to the assessee on the ground that the Balance-sheet was showing refund as amount recoverable from Customs under 'other current assets' and the certificate of the Chartered Accountant was also produced to that effect; (b) Jaipur Syntex Ltd. v. Commissioner of Central Excise, Jaipur [2002 (143) E.L.T. 605 (Tri.-Del.)] in which it was held that the incidence of duty is not passed on by the assessee to the customers in view of the evidence produced by them in the form of balance sheets for various years and, therefore, the refund is admissible. (iii) The learned Counsel of the respondents also maintained that the Chartered Accountant's certificate is based on the audited Balance sheet of the company as o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeals) has not considered the fact that original adjudicating authority had not examined the provisions of unjust enrichment in a true manner, who had considered the Chartered Accountant's certificate to the effect that incidence has not been passed on to consumer, without examining the supporting documents to substantiate the fact of such certificate, as held in the various decisions cited in the appeal memorandum. 23. Further, it is not understood how the Chartered Accountant has given the certificate on 12-2-07, when the relevant documents like Bills of Entry, TR6 challans, Bill of Lading, invoices etc. of the respondents were already lost on 2-10-2006. 24. In view of the above facts and circumstances, I hold that the Orders passed by the Commissioner (Appeals) are not legal and proper. I set aside the same and remand the cases to the original adjudicating authority for de novo decision, keeping in view the submissions made by the Revenue/learned S.D.R. and the learned Counsel of the respondents, including the case laws cited by them and my observations as above. The Original adjudicating authority is directed to pass appropriate orders in accordance with law a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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