Custom, Excise & Service Tax Tribunal
Sheth Impex vs Commissioner Of Customs, Chennai on 4 February, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No. C/58/2007
[Arising out of Order-in-Appeal No.C.Cus.No.836/06 dt. 20.11.06 passed by the Commissioner of Customs (Appeals), Chennai]
For approval and signature:
Honble Mr.P.KARTHIKEYAN, Member (Technical)
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? :
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? :
3. Whether the Member wishes to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Sheth Impex
Appellants
Versus
Commissioner of Customs, Chennai
Respondent
Appearance:
Shri Hari Radhakrishnan, Advocate Shri M.K.A.K.Mohiddin, JDR For the Appellants For the Respondent CORAM:
Honble Mr.P.Karthikeyan, Member (Technical) Date of hearing : 4.2.2009 Date of decision : 4.2.2009 Final Order No.____________ 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 Oct05. 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 June04-September04 and a Chartered Accountants 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 Accountants 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 Vs Commissioner of Customs, Jaipur, 1999 (113) ELT 267 (Tribunal), he rejected the certificate of the Chartered Accountant. 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 Accountants 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. During hearing, the ld. counsel relied on the following case law :-
1) Commissioner of Customs, Mangalore Vs Lamina Foundries Ltd.
[ 2002 (150) ELT 248 (Tri.-Bang.)]
2) TITAN Industries Ltd. Vs CC Bangalore [2006(194) ELT 38 (Tri.-Bang.)] The ld. JDR relies on the decision of the Tribunal in Shree Ram Industries case (supra) and defends the impugned order.
4) 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. I find that, in the instant case, the additional evidence produced before the Commissioner (Appeals) was not admitted. He found that such evidence could not be admitted in terms of Rule 5 of Customs Appeals Rules, 1982. In deciding so, he also relied on the Tribunals decision in Shree Ram Industries case (supra). In that case, the Tribunal had observed as follows :-
6. Now the appellants relying on Supreme Court judgment mentioned (supra) submit that the certificate of the C.A. should be taken on record. I am unable to accept this plea of the appellants. The acceptance Certificate of C.A. is neither a new ground, nor it is a question of law. It is only an evidence regarding a fact that the burden of duty has not been passed, by the appellants to their customers. This has been the question right through from the stage of original adjudication. This evidence could be produced earlier by placing the books of Account, the fact in question which was before the original authority. The Lower Appellate Authority has rightly rejected taking the certificate of C.A. on record. Hence I do not find any substance in the appeal. Consequently, I reject the same. I find that the impugned order was passed rightly relying on the above judgment of the Tribunal. As regards the other decision of the Tribunal in TITAN Industries case relied on by the appellants, the facts were that the appellants therein had submitted a Chartered Accountants certificate before the proper officer. The claim of the appellants for refund was rejected in that case by the Commissioner finding that the appellants had not produced any financial documents to show that duty amount had been kept in suspense in the schedules relating to Loans and Receivables. The Tribunal upheld the claim of the appellants therein that they had not been allowed an opportunity to substantiate their claim with the required financial documents. The Tribunal remanded the matter to the original authority. I find that, in the instant case, the original authority had directed the appellants vide his letter dt. 22.9.05 that they were required to establish that the refund claimed had not been passed on to their buyers and that refund would not involve unjust enrichment. They were specifically told that a certificate from the Chartered Accountant would meet the requirement provided it was certified that the impugned amount was recorded in their books of accounts/balance sheet as Receivables from Customs. Other certificates from the Chartered Accountant could also be produced in different circumstances to substantiate the claim that the amount involved had not been passed on to their buyers/customers. At no stage during the proceedings, the appellants claimed that their financial records had shown the amount claimed as Receivables from Customs. Therefore, the ratio of TITAN Industries Ltd. case does not support the case of the appellants. In the circumstances, I find that the impugned order does not call for any interference. In the result, the appeal is dismissed.
(Operative part of the order was pronounced in open court on 4.2.2009) (P.KARTHIKEYAN) MEMBER (T) gs 2