BOMBAY TRADING CO. Vs. COMMISSIONER OF CUSTOMS, COCHIN

JUDGEMENT

(1.) THIS appeal has been filed in respect of Order -in -Appeal No. 209/2006 dated 23 -8 -2006 passed by the Commissioner of Customs (Appeals), Cochin.

(2.) THE appellants imported three consignments of toys, clocks, artificial flowers and pocket torches after filing three Bills of Entry. The declared value of Rs. 14,79,304/ - was not accepted. The Original Authority enhanced the value to Rs. 31,06,897/ - and imposed redemption fine of Rs. 6,25,000/ - and personal penalty of Rs. 1,75,000/ -. The appellants cleared the goods on payment of duty, fine and penalty. The duty paid comes to Rs. 18,71,312/ -. The appellants challenged the orders of the lower authority before the Commissioner (Appeals). The Commissioner (Appeals) in his order dated 10 -10 -2003 set aside the order of the lower authority loading the value of the goods imported and imposing fine and penalty. Consequent, to the favourable order of the Commissioner (Appeals), the appellant claimed a refund of Rs. 17,62,044/ -. The Asst. Commissioner while sanctioning the refund of fine and penalty amounting to Rs. 8,00,000/ - rejected the refund of duty on the ground that the appellant did not conclusively prove that the incidence of duty had not been passed on to any other person. A certificate was produced from the Chartered Accountant. Since that certificate was not satisfactory to the Revenue, another certificate was produced. The Asst. Commissioner rejected the refund in view of the discrepancies between the two certificates of the Chartered Accountant and he came to the conclusion that the appellants had not discharged the burden of proof that the incidence of duty has not been passed on to the buyer. Aggrieved over the order of the lower authority, the appellants approached the Commissioner (Appeals). The Commissioner (Appeals) rejected the appeal. The appellants are aggrieved over the impugned order.

(3.) SMT . Padmini Sundaram, learned Advocate appeared for the appellants. She urged that as per the enhanced value and actual duty paid, the landed cost comes to around Rs. 54,38,239/ -. However the goods have been sold to Rajinder Trading for Rs. 23,84,836/ - (excluding sales tax). Thus the goods have been sold under great loss and there cannot be any question of passing on the incidence of duty to the buyer. She also relied on the following decisions of the Tribunal.