9911796707
TMI Blog2023 (12) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... d order, the Commissioner (Appeals) allowed the refund claims filed by the respondent. 2. The facts of the case are that the respondents are importer of fibre optic cable (DWSM & OPGW) and filed 26 Bills of Entry for clearance of the same. 2.1 At the time of assessment, the dispute regarding classification of the impugned products did arise between the importer and the Department. As a result, provisional assessment of the impugned Bills of Entry were resorted to. 2.2 The Department, therefore, classified the impugned goods under CTH 90011000 attracting Customs duty at the rate of 10% adv. The importer paid the duty under protest and also followed it up by formal letter of protest to the Department. The goods were subsequently got tested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also relied upon the decision of the Hon'ble Apex Court in the case of Commissioner of Customs, New Delhi Vs. Organan (India) Limited reported in 2008 (231) ELT 201 (S.C.), wherein the Hon'ble Apex Court has observed 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 question were exempt from payment of customs duty and that is why it was not liable to pay any customs duty on the imported goods. Customs authorities did not agree with this contention and consequently asked the assessee to pay cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee is eligible to refund of the customs duty. It is an admitted position that the burden to prove that the customs duty was not passed on to the customers is on the assessee. The Member (Technical) and the third Member on the basis of the following facts : (i) in the invoices, it was clearly mentioned that the sale price did not include the customs duty. (ii) that there was no change in price post-levying of the duty. Assessee had filed its price list and the customs duty was imposed thereafter. The goods were sold to the customers at the same price which was stated in the price list. (iii) That there was an auditor's certificate certifying that assessee had not passed on the customs duty to the customers.came to the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... informed to them by the Department, the respondent has also indicated the same in their books of account. Since the refund amount was contingent upon the outcome of the test report, it is very obvious that the said amount could not be reflected as receivables then and there. 8. We also take note of the fact that in case of Savita Oil Technologies Limited Vs. Commissioner of Central Excise, Belapur reported in 2016 TIOL 1444-CESTAT-Mum. wherein the co- ordinate bench of this Tribunal had held that when the amount actually paid does not lead to obvious conclusion that the burden of duty has been passed on, the date of recording of the said amount in the Books of Accounts is irrelevant. Even otherwise, mere accounting is not conclusive proof ..... X X X X Extracts X X X X X X X X Extracts X X X X
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