EURO MERCHANDISE (I) LIMITED Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THIS appeal has been filed by the appellant M/s. Euro Merchandise (I) Limited with respect to OIA No. 223/2011/CUS/COMMR -A -/KDL dated 05.08.2011 passed by the first Appellate authority under which OIO No. KDL/495/RKC/REFUND/MP & SEZ/10 -11 dated 05.08.2010 passed by the Adjudicating authority is upheld. Adjudicating authority vide OIO dated 05.8.2010, issued on 06.8.2010, sanctioned a refund of Rs. 1,63,59,968/ - filed by the appellant but ordered that the same is required to be credited to Consumer Welfare Fund as the refund sought falls within the ambit of doctrine of Unjust -Enrichment. First appellate authority has not accepted the reliance placed by the appellant on various judicial pronouncements differentiating them on the grounds that circumstantial flexibility or one additional different fact can make a world of difference between two cases as observed by Apex Court in the case of Commissioner vs. Srikumar Agencies ( : 2008 (232) ELT 577 (S.C.)). Commissioner (Appeals) also relied upon CESTAT order in the case of Sree Baidyanath Ayurved Bhavan Limited vs. CCE Nagpur ( : 2009 (238) ELT 680 (Tri. Mum.)) where, inter -alia, it was held that once goods are sold at MRP then it is implied that duty of incidence has been passed on to the ultimate consumer.

(2.) THE facts leading to the present appeal as per OIA dated 05.8.2011 are that appellant did not declare the MRP affixed on the said imported goods and at the time of import, the goods were assessed to Additional Duty of Customs (CVD) on the basis of the invoice value. Ceramic tiles being notified commodity under Section 4A of the Central Excise Act, 1994, were admittedly liable to CVD on the basis of MRP in terms of Notification No. dated 01.3.2002. In March 2006, investigations were initiated by DRI against the appellant and a show cause notice was issued on 24.5.2007 for determination of differential duty. During the currency of investigation undertaken by the DRI, the appellant paid up the entire differential of CVD Rs. 1,57,35,596/ - vide 10 challans between April 2006 and April 2007 and also an amount of interest Rs. 6,24,372/ - vide challan dated 10.7.2006. The said show cause notice culminated into an order -in -original No. KDL/Commr/19/2008 dated 31.03.2008 passed by the Commissioner of Customs, Kandla confirming, inter alia, demand of duty of Rs. 1,83,19,587/ -. In appeal filed by the appellant, CESTAT Ahmedabad vide its order No. A/2015 -2019/WZB/AHD/2009 dated 26.09.2009 partly set -aside the order -in -original dated 31.3.2008 by holding that the imported tiles were liable to be assessed to duty of CVD on the basis of MRP and that the demands are barred by limitation having been raised on 24.5.2007 for the period July/August 2005 to March 2006. Shri Anand Nainawati (Advocate) appearing on behalf of the appellant during hearing as well as through written submissions received on 14.11.2014, made the following arguments: -

(3.) SHRI J. Nagori (AR) appearing on behalf of the Revenue strongly defended the order passed by the first appellate authority. He made the bench go through various paragraphs of the OIA dated 05.8.2011 to drive home the point that the pattern of sale by the appellant before the present imports and after these imports has remained the same when ceramic tiles were sold on MRP by the appellant. That by non -declaration of MRP at the time of import it can not be said that imported tiles were not sold at MRP and the element of customs duty paid has to be considered as included in the sale price of the tiles and recovered from the customers. It was also argued by the learned AR that even if the amounts were paid during investigation but the amount paid has to be considered as payment of duty because on merits the duty demanded was found payable by CESTAT under Section 4A of the Central Excise Act, 1944 and accordingly case laws relied upon by the appellant are not applicable. Learned AR relied upon the following case laws in support of his arguments: -