BORASARA MACHINES Vs. THE COMMISSIONER OF CUSTOMS (I)

JUDGEMENT

(1.) THESE appeals are filed by M/s. Borasara Machines, Surat, against the impugned order of rejecting their refund claim.

(2.) THE facts of the case are that the appellants filed refund claim of deposit as revenue deposit pertaining to import of goods through various bills of entry, which were assessed provisionally at the time of clearance. By an order dated 24/12/92 passed by the Assistant Collector of Customs (SVB), who ordered the loading of CIF value and ordered for finalisation of all provisional assessments. The order was challenged by the importer before the Commissioner (Appeals), who allowed their appeal by holding that loading was not legal and proper. Subsequently, the department filed an appeal before this Tribunal and the same was rejected. In pursuant to that the importer filed a refund claim for the amounts paid as revenue deposit. The Deputy Commissioner sanctioned the refund claim but credited the same to the Consumer Welfare Fund. Against that the appellants preferred an appeal before the Commissioner (Appeals), who also rejected the refund claim holding that the appellants have not been able to produce such incontrovertible evidence to prove that the burden of differential duty paid in the form of revenue deposit had not been passed on to the buyers. Aggrieved from the same, the appellants are before us.

(3.) HE further submitted that although that doctrine of unjust enrichment is not applicable but the duty incidence has also not been passed on to the buyers. He also submitted that the balance sheet showing the amount of refund claim as recoverable amount and certificate of the Chartered Accountant which are sufficient documentary evidences evidencing that the burden of duty has not been passed on. He drew our attention to the Annexure -I of the reply dated 15/11/2006 filed by them before the adjudicating authority. The adjudicating authority although considered the same but held that it is not clear as to how the subject amount has been shown as Customs duty recoverable amount, accordingly they have not allowed the refund claim. Further, in the impugned order also the Commissioner (Appeals) has failed to consider the submissions made by the appellant that duty incidence has not been passed on as the same are reflected in their balance sheets and the Chartered Accountant's certificate is also filed by them confirming that the duty incidence has not been passed on to the buyers. But the Commissioner (Appeals) held that the appellant has not been able to produce such evidence to prove their claim that the burden has not been passed on.