(1.) HEARD both sides on the appeal against the order of the Commissioner of Customs (Appeals) rejecting the claim for refund of Rs. 59,532/ - being the excess duty paid by the assessees and also directing credit of the duty amount together with fine and penalty to the Consumer Welfare Fund under the provisions of Section 27(2) of the Customs Act, 1962.
(2.) THE brief facts are that the assessees imported four second -hand weaving looms under bill of entry dated 03.06.2003. The machineries were more than 10 years old for which specific import licence was required. Since the importer did not possess licence, the goods were confiscated with an option of redemption on payment of a fine and penalty and the value of the machinery was enhanced and the importer was directed to pay applicable duty on the enhanced value, as per order dated 30.06.2003 of the Commissioner of Customs, Tuticorin. The amount of fine, penalty and excess duty was paid under protest; the importers filed an appeal before the Tribunal which vide its order dated 26.07.2006, remitted the case for fresh decision. In the second round of litigation, the Commissioner of Customs, Tuticorin, by order dated 16.03.2007 reduced the value of the machinery and confiscated the same with an option of redemption on payment of fine and penalty. The importers claimed refund of fine and penalty paid as per original order of the Commissioner as also the excess duty paid by them. Show -cause notice dated 19.02.2008 was issued proposing rejection of the entire claim for refund of Rs. 6,34,532/ - (excess duty Rs. 59,532/ - + Rs. 4,25,000/ - + Rs. 1,50,000/ -). The claim (sic) Rs. 4,25,000/ - and Rs. 1,50,000/ - was sanctioned by the Assistant Commissioner vide his order dated 27.03.2008. However, as regards excess duty of Rs. 59,532/ -, while sanctioning claim on merits, he directed credit of this amount of excess duty to the Consumer Welfare Fund as the importers had not discharged the burden of establishing that they had not passed on the duty incidence to their customers. Before the Commissioner (Appeals), the assessees challenged only the credit of the excess duty to the Consumer Welfare Fund. The Commissioner (Appeals) has, however, held that the entire amount of Rs. 6,34,532/ - has been rightly credited to the Consumer Welfare Fund as the assessees had only produced Chartered Accountant Certificate to prove that the duty incidence had not been passed on to any other person and had not filed any other documentary evidence to substantiate the claim of non -passing of the duty incidence to others. Hence this appeal.
(3.) THE appeal is thus partly allowed as above.