TMI Blog2005 (7) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... l authority in his order, is not called for decision thereon is not as per law. The non submission of original TR6, as per question No. 2 framed, finding arrived, of the same having been submitted to be not satisfactory cannot be upheld. The duty payments of the same could be verified from the other proceedings documents filed with the department. In any ease, refunds, if otherwise eligible, cannot be refused for non supply of original TR-6. A procedure of indemnity Bonds is prescribed for such cases. The appellants Balance sheet for the year 30-6-84 shows the claim for amount of Rs. 41,32,530/- towards excess Customs duty paid. Certificates of Chartered Accountant dated 26-10-2002 indicate that this amount in question was not claimed as expense by this manufacturer importer to be included in the costing of the tubes manufactured sold. Therefore the expense has been incurred by the importer and borne by him and cannot be said to have been passed on expenses in manufactured goods sold. Affidavits of Jt. President of the assessee company were produced to claim that the excess duty paid was not passed on to the Customer. The lower authorities reliance on M/s. Solar Pesticides case [ 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... test. 1.4 Refund claims on 11 such exbond clearances effected at higher rates were filed on 27-6-85. These clearances are tabulated below. Sr. No. Ex-Bond/BE No. Date Corresponding into Bond B/E No. Date 1 1/85-86 9-4-1985 8112 27-3-1985 2 4/85-86 12-4-1985 8113 27-3-1985 3 5/85-86 12-5-1985 8113 27-3-1985 4 8/85-86 6-5-1985 8112 27-3-1985 5 7/85-86 6-5-1985 8112 27-3-1985 6 9/85-86 1-6-1985 8113 27-3-1985 7 2/85-86 9-4-1985 8112 27-3-1985 8 3/85-86 12-4-1985 8112 27-3-1985 9 6/85-86 6-5-1985 8112 27-3-1985 10 10/85-86 1-6-1985 8113 27-3-1985 11 19/84-85 8-3-1985 1373 31-1-1985 1.5 Writ Petition filed was finally disposed on 18-8-93 upholding the classification under Heading 73.08. The departments Civil Appeal No. 3101 in the S.C. was dismissed on 20-2-2001. 1.6 A notice dated 13-9-2002 was served on the importers, by D.C. incharge proposing rejection of refund and finding as follows - In the present case the issue to decide before me is (1) whether the assessee has passed on the incidence of duty element paid on the consignment in question to any other person by adding the cost of excess duty element, while calculating the cost of their final products. (2) Whether the claim can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the incidence of duty element to any other person. Apart from the above, they have not submitted any break up of the cost of the said finished goods from which it can be established that the duty element of the said raw material has not been included in the sale value of the finished goods, since at that time, the said finished goods were exempted from payment of duty and in absence of this breakup it can easily be inferred that the sale value of the finished goods includes the duty element what has been paid on the raw material and this must have been collected from the buyers of the said finished goods. They have also not submitted any credit note/cheque/DD issued to the buyer of the said goods after sale from which it can be proved that they had not passed the duty burden to the buyers of the said goods while selling the goods. Therefore, in absence of the above documents the assessee's contention is not acceptable as unsubstantiated due to lack of supporting documents. Further, the said assessee has failed to produce the original documents as mentioned in the addendum dated 18-6-2003 relating to the present refund claim. The reason given by the assessee that they have s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner, Central Excise v. Flock (I) - 2000 (120) E.L.T. 285 (S.C.) followed by the Tribunal in a number of cases the refund claim was not maintainable and has been rightly rejected. As regards non-submission of original documents, the averment, that the same had been submitted in connection with another refund claim, is not supported by any documentary evidence. It does not appear plausible that the appellants had submitted original documents without any acknowledgement. The contention is not acceptable in the absence of any acknowledgement or any explanation. Even though the refund claim had been filed in 1985, the amended provisions of Section 27 of Customs Act, 1962 were applicable to it in view of the law declared by the Apex Court in Union of India v. Jain Spinners Ltd. - 1992 (61) E.L.T. 321 (S.C.) and Union of India v. ITC Ltd. 1993 (67) E.L.T. 3 (S.C.). Regarding bar of unjust enrichment, the appellants are relying upon the trial balance of their Engineering Division, the C.A. Certificate and the affidavit dated 15-11-2002 of Shri Arun Jain, Joint President of the appellant company. The said evidence may not be conclusive. The affidavit of Shri Jain states that he has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framed by the original authority in his order, is not called for decision thereon is not as per law. (iii) The non submission of original TR6, as per question No. 2 framed, finding arrived, of the same having been submitted to be not satisfactory cannot be upheld. The duty payments of the same could be verified from the other proceedings documents filed with the department. In any ease, refunds, if otherwise eligible, cannot be refused for non supply of original TR-6. A procedure of indemnity Bonds is prescribed for such cases. The same is to be followed refunds sanctioned and paid as held by the Tribunal in case Hindustan Tin Works Ltd. v. Collector Jay Engineers Works Ltd., CCE - 2003 (158) E.L.T. 718 following the same, rejection of refunds is not upheld. (iv) The appellants Balance sheet for the year 30-6-84 shows the claim for amount of Rs. 41,32,530/- towards excess Customs duty paid. Certificates of Chartered Accountant dated 26-10-2002 indicate that this amount in question was not claimed as expense by this manufacturer importer to be included in the costing of the tubes manufactured sold. Therefore the expense has been incurred by the importer and borne by him and cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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