COMMISSIONER OF CUSTOMS Vs. PAN CONSULTANT

JUDGEMENT

(1.) PAN Consultant, Ahmedabad, the respondent to this appeal, imported a scanner and cleared it on payment of duty. Subsequently,it filed a claim for refund of part of the duty that it paid on the ground that the goods were entitled to assessment at lower rate of duty under Heading 98.01 of the tariff. Notice was issued to it accepting the correctness of this claim for refund and proposing to deposit the amount to the Consumer Welfare Fund and not to the claimant on the ground that it has not been shown that the incidence of duty has not been passed on. The Assistant Commissioner, after considering the reply of the claimant, concluded that it has not been shown that the incidence of duty has been passed on and ordered the amount to be credited to the Consumer Welfare Fund. The importer appealed this order. Disposing of the appeal, the Commissioner (Appeals), relying substantially on the decision in Solar Pesticides Pvt Ltd v. Union of India 1992 (520 ELT 201, held that in the case of goods which were not sold, the provisions of Sub -section (2) of Section 27 will not apply, and ordered the refund to be paid to the claimant. This is questioned in the appeal by the Commissioner.

(2.) THE ground in the appeal is that the requirement contained in Sub -section (2) of Section 27 of the Act that it must be shown that the incidence of duty has not been passed on, will apply equally to the goods which are not sold.

(3.) THE departmental representative reiterates these grounds pointing out that the judgment of the Bombay High Court is no longer good law, having been reversed by the Supreme Court in its judgment reported in 2000 (116) ELT 401.