CHAMBAL FERTILISERS AND Vs. COMMR. OF CUS. (IMP.)

JUDGEMENT

(1.) THE facts in brief are that the appellants had imported goods falling under Custom Tariff Heading No. 98.01 at Nil rate of duty for initial setting up of plant for manufacture of Urea. They also imported Crane of 120 MT capacity along with project. At the time of clearance of goods from customs, crane was held as chargeable to duty under Tariff Heading 8426.41 and duty of Rs. 1,63,69,482/ - was assessed. The appellants agreed to pay a lump sum amount of Rs. 1 crore and paid the same. Thereafter, charge -ability of duty on the crane was contested and finally the Tribunal in its Order No. 136/03 -B, dated 20.12.2002 allowed the appeal of the appellants with consequential relief including refund of the amount paid as duty towards the demand. Appellants accordingly filed refund for Rs. 1 crore for the duty paid by them on the disputed assessment of crane which was sanctioned by the Adjudicating Authority. Revenue filed the appeal against this order of sanction of refund before the Commissioner (Appeals) who under the impugned order set aside the order of the lower authority and allowed the appeal of the Department.

(2.) IT was argued for the appellants that once the Tribunal has passed a final order allowing refund of duty, the same should have been implemented subject to the provisions of Section 27 of the Customs Act. They produced evidence before the Adjudicating Authority that incident of duty has not been passed on to any other person by submitting Chartered Accountant certificate. They also submitted the relevant financial records duly attested by the Chartered Accountant in support of their contention. However, the Commissioner (Appeals), in his order, relied on the decision of Bombay High Court in the case of Bussa Overseas and Properties Pvt. Ltd. , where it was held that refund of duty under Section 18(2) is subject to proof of unjust enrichment. Commissioner (Appeals) also relied on the decision of the Tribunal in the case of Memirex and Company 2004 (174) E.L.T. 216 (Tribunal), where it was held that C.A. certificate showing that they have not passed on the duty burden by itself is not conclusive proof against unjust enrichment. It was argued that they have produced financial records and the C.A. certificate before the original authority. The Original Authority has not only relied upon the C.A. certificate but also seen the financial records. If the Commissioner (Appeals) was not satisfied with the Chartered Accountant certificate, he could have called the financial records which was not done. Therefore, the order of the Commissioner (Appeals) is bad in law.

(3.) IT was argued for the Revenue that the Commissioner (Appeals) has denied the refund on the ground that C.A. certificate is not conclusive evidence. It was pleaded that following decisions of the Tribunal and Delhi High Court support this view that the certificate of C.A. is not itself conclusive proof to hold that duty incidence has not been passed on to another person: