SHETH IMPEX Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) M /s. Sheth Impex imported a consignment of medical equipment and cleared the same under Bill of Entry No. 627594/12.5.04. Later on, they discovered that the consignment was eligible for a concessional rate of 5% Basic Customs Duty instead of 20% Basic Customs Duty they had paid. They successfully challenged the assessment before Commissioner (Appeals) and approached the Assistant Commissioner of Customs (Refunds) for refund of the excess amount of Rs. 72,297/ - they had wrongly paid. That authority rejected their claim finding that the importer had not established that the excess duty paid had not been recovered from the buyers of the imported goods. In the impugned order, which sustained the order of the original authority, the Commissioner found that the appellants had been allowed adequate opportunity to present their case by the original authority. He found that the appellants had filed their claim for refund in Oct'05. The appellants were informed vide letter dt. 7.3.2006 to establish that incidence of impugned duty had not been passed on to their customers. The appellants did not appear for the personal hearing before the original authority but forwarded copies of invoices they had issued during the period June'04 -September'04 and a Chartered Accountant's certificate which only stated that they had verified the invoices. After studying the documents furnished by the appellants, the Assistant Commissioner of Customs (Refunds) sanctioned the amount claimed but credited it in the Consumer Welfare Fund. Before the Commissioner (Appeals), the appellants had produced some invoices in addition to those which had been produced before the original authority. Those invoices did not bear the signature of the appellants. A cost comparison chart produced before him was also certified by advocates and not any Chartered Accountant. A certificate from the Chartered Accountant who had issued the certificate produced before the original authority was produced before the Commissioner (Appeals). This document dt. 27.9.06 certified that the appellants had not passed on the impugned amount of duty. The Commissioner (Appeals) found that the Chartered Accountant's certificate dt. 27.9.06 was fresh evidence and could not be admitted by him in terms of Rule 5 of Customs (Appeals) Rules, 1982. Relying on a decision of the Tribunal in Shree Ram Industries v. Commissioner of Customs, Jaipur , he rejected the certificate of the Chartered Accountant. He dismissed the appeal. The subject appeal challenges this order of the Commissioner (Appeals).

(2.) IN the appeal filed before the Tribunal, it is submitted that they had produced Chartered Accountant's certificate dt. 27.9.06 before the Commissioner (Appeals) and sought remand of the matter to the original authority with a direction to examine their claim in the light of the said certificate. The Commissioner had wrongly placed reliance on the decision of the Tribunal in the case of Shree Ram Industries (supra). It is prayed that the matter may be remanded to the original authority to decide their claim afresh considering the additional evidence and explanations they had produced before the appellate Commissioner.

(3.) I have carefully considered the case records and the submissions by both sides. I find that the prayer for remand of the case was declined in the impugned order finding that the additional evidence sought to be relied could not be admitted in terms of Customs (Appeals) Rules, 1982 (Rules). Basic Customs Duty There is no dispute that Rule 3 of the Rules does not permit admission of fresh evidence before the Commissioner (Appeals). In the Lamina Foundries Ltd. case (supra), relied on by the appellants, the Tribunal had observed that the Commissioner (Appeals) having admitted the evidence before him for the first time should have remanded the matter to the Assistant Commissioner of Customs. The Tribunal remanded the matter to the original authority to decide the matter afresh.