BHAWANI FLOUR MILLS LTD. Vs. C.C.

JUDGEMENT

(1.) THIS appeal is directed against the Order -in -Appeal dated 17.2.2005 wherein Order -in -Original rejecting the refund claim of the appellants was upheld.

(2.) THE relevant facts that arise for consideration are that the appellants imported parts of flour mill machinery and classified the same under Customs Tariff Heading 8437.90. The department sought to classify the product under 8479.89. Pending the dispute the appellants deposited the duty payable on such goods sought as classified by the department, and took up the matter of classification in the higher forum. The Commissioner (Appeals) upheld the claim of the appellants' product under Chapter 8437.90. The said appeal stands finalized. Subsequent to the Order -in -Appeal in their favour the appellants preferred a refund claim of the duty paid. The said refund claim was rejected by the adjudicating authority on the ground that the appellants have not proved by substantial documentary evidence that incidence of duty has not been passed on by them. On appeal, the Commissioner (Appeals) has also come to the identical findings and upheld the Order -in -Original. Hence, this appeal.

(3.) LEARNED Consultant for the appellants submits that the question involved in this case is regarding duty paid by them on the capital goods which have been installed in the factory. These capital goods are used by them for manufacturing flour, sooji, maida, etc. on which no excise is payable. It was his contention that the final products manufactured by the appellants are not excisable goods, and hence, the question of passing of incidence of duty to their customers does not arise. He relies upon the decision in the case of Golden Iron & Steel Forging v. C.C. Mumbai , and Pearl Beverages Ltd. v. C.C., Chennai 2004 (168) ELT 92, and Picasso Exports v. C.C.(ACC), Chennai to substantiate the appellants' claim that the question of rebutting of provisions of Section 28D of the Customs Act, 1962 does not arise. Learned Consultant also relies upon the C.A. certificate filed by them before the appellate authority as well as before the adjudicating authority to drive home that the amount of duty sought to be refunded was not passed over to their customers.