INDIA AGENCIES Vs. CC

JUDGEMENT

(1.) THIS appeal is against rejection, by the lower authorities, of a refund claim of the appellants on the ground of unjust enrichment. The appellants had imported certain machines claiming the benefit of Customs Notification No. 36/96 (Sl. No. 53 of List No. 6 appended thereto). The assessments were made without granting this benefit and accordingly higher duty was paid by the assessee. Subsequently, they claimed refund of the excess duty paid. This claim was allowed by the original authority but the amount was credited to Consumer Welfare Fund, in the absence of documentary evidence against unjust enrichment. Before the first appellate authority, the party produced an affidavit from the Chairman of the company as also a certificate from their Chartered Accountant, in their endeavour to show that the incidence of excess duty had not been passed on directly or indirectly to any other person. They also showed their ledger accounts to the Commissioner (Appeals). They requested for cash refund, having claimed to have established the absence of unjust enrichment. Learned Commissioner (Appeals) was not satisfied with the evidence adduced by the party in the absence of invoices not showing separately the price of, and duty on, goods. The case law cited by the party was distinguished. In the result, the appeal against the Assistant Commissioner's order stood rejected. Hence the present appeal.

(2.) AFTER examining the records and considering the submissions, we find that, right from the financial year in which the refund claim was filed, the appellant's Chartered Accountant was showing the claim amount on the debit side on the first day of every successive financial year and on the credit side on the last day of such year. Learned Counsel today submits that this method of accounting was enough to establish that the excess duty burden had not been passed on by the appellants to the buyers of the goods. It is submitted that, on similar facts, this Tribunal has allowed cash refund of Customs duty to importers on the strength of Chartered Accountant's certificates. Reliance is placed on Hero Honda Motors Ltd. v. Commissioner 2000 (126) ELT 1014 (Tribunal) and ABB Ltd. v. Commissioner .

(3.) AFTER considering the submissions, we find that Section 28C of the Customs Act requires the price of goods shown in sales invoice or like document to include the duty paid thereon. Section 28D presumes that every person who has paid duty on any goods under the Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of the goods. These provisions when read together would indicate that any price of goods shown in an invoice issued by the importer of such goods to its domestic buyer shall be deemed to be a cum -duty price, a situation analogous to what is obtaining, in respect of excisable goods manufactured in the country, under Section 4(4)(d)(ii) of the Central Excise Act. The seller is deemed to have passed on the duty incidence to the buyer. The burden is on him to rebut this presumption for the purpose of obtaining cash refund of the duty where such refund is otherwise admissible. The immediate question is whether the Chartered Accountant's certificate is conclusive evidence to rebut the above presumption. None of the decisions cited by learned Counsel has held that, on the strength of such a certificate alone, the presumption of unjust enrichment could be rebutted. We are of the considered view that a Chartered Accountant's certificate such as the one produced by the appellants is no substitute for the evidence stemming from an invoice. The price mentioned in each of the invoices involved in this case is deemed to be a cum -duty price under Section 28C. This would mean that the buyer of the goods assumed the duty burden also. There is no evidence on record to indicate to the contrary. The affidavit seen on record is by the Chairman of the appellant -company and not by any of the buyers. The Chartered Accountant's certificates are certificates issued by professionals interested in their client (the refund -claimant) and such documents, per se, cannot be accepted singularly and conclusively as evidence against the latter's unjust enrichment, though they could be corroborative evidence in a given case.