COMMISSIONER OF CUSTOMS Vs. HINDALCO INDUSTRIES LTD

JUDGEMENT

(1.) IN the present appeal, the appellant -Revenue has proposed the following questions of law :

(2.) THE brief facts, giving rise to the present appeal, are that the respondent herein, a Unit of Birla Copper, ha purchased copper concentrate in bulk from M/s.Trafigura AG. Zurichstrasse, Switzerland. The goods were shipped from the port of Kembla, Australia, on 12 -3 -2005. The respondent filed advance Bill of Entry No. F -017/05 -06 dated 15 -4 -2005. As per the said Bill of Entry, the duty was provisionally assessed at Rs. 12,80,20,507/ -. The Basic Duty and the Education Cess component on Basic Duty amounting to Rs. 2,89,16,811/ - was debits under DEPB Scheme. Rs. 9,91,03,696/ - was paid in cash vide TR6 Challan No. 0046/2005 -2006, dated 15 -4 -2005, which was realized on 16 -4 -2005. After the Bill of Entry was finally assessed on 1 -3 -2006, it was found that provisional assessment was done on the basis of provisional invoice No. 5040 dated 12 -3 -2005, whereas the final assessment was shown as per final invoice dated 27 -7 -2005. In the metal trade, it is common knowledge that final price of the concentrate is calculated by calculating the metal content and the prevalent price of such metal in the LME (London Metal Exchange).

(3.) AFTER verifying the LME price at the relevant time, the final invoice dated 27 -7 -2005 was submitted by the respondent. It is the case of the appellant -Revenue that the total customs duty finally assessed at the time of final assessment was Rs. 12,06,95,427/ - but the respondent importer had been granted re -credit of Basic Duty and Education Cess component on Basic Duty in DEPB and they have also availed CENVAT credit for the additional duty of customs (popularly known as CVD) and Education Cess on CVD amount and they have filed their refund claim of the differential amount of 2% Education Cess on total duty of Rs.1,11,188. The respondent has filed Refund claim of Rs.1,11,188/ - on 6 -6 -2006 pertaining to Bill of Entry No. F -017/05 -06, dated 15 -4 -2005, which was finally assessed by the authorities on 1 -3 -2006. The Adjudicating Authority vide Order -in -Original held that the respondent assessee was entitled to refund and the refund was sanctioned, but the assessee had not discharged the burden of showing that the incidence of duty had not been passed on to the customers and, therefore, the presumption of unjust enrichment stood unrebutted. The Adjudicating Authority, therefore, credited the sum of Rs. 1,11,187/ - to the Consumer Welfare Fund.