GUJARAT STATE FERTILIZERS AND Vs. COMMR. OF CUS.

JUDGEMENT

(1.) Appeal taken up for disposal after accepting the prayer made for early hearing on the ground that the amount of refund exceeds Rs. 1.48 crores.

(2.) Appellant was sanctioned refund of Customs duty paid on several consignments of phosphoric acid imported by it from Tunisia. The refund arose because at the time of initial clearance it was not able to satisfy the department that the benefit of Notification No. 236/89, which provides for concessional rate of duty to goods imported inter alia from Tunisia was available. The Assistant Commissioner held that the benefit of notification was available and refund payable; he however noted that the appellant had not shown that the incidence of duty already paid had not been passed on to any other person or that the goods shown, as claimed, that the imported goods were captively consumed in appellant's factory as claimed. Therefore, he sanctioned the refund and ordered the amount of refund credited to the Consumer Welfare Fund.

(3.) The appellant appealed this order to the Commissioner (Appeals) contending that the goods had been captively consumed and hence on the ratio of the judgment of the Bombay High Court in Solar Pesticides v. Union of India -1992 (57) E.L.T. 201. The Commissioner (Appeals) did not agree. He preferred to rely on the judgment of the Gujarat High Court in Union of India v. Bharat Vijay Mills Co. Ltd. - 1998 (34) E.L.T. 605 and Navsari Oil Products Ltd. v. Assistant Collector of Central Excise -1992 (60) E.L.T. 550.