Customs, Excise and Gold Tribunal - Bangalore
Commr. Of Cus. vs Marathwada Refractories Ltd. on 10 March, 2006
ORDER S.L. Peeran, Member (J)
1. This is a Revenue appeal arising from Order-in-Appeal No. 17/04, dated 30-7-2004 passed by the Commissioner (A), Guntur accepting thg pefund claim and setting aside the Order-in-Original directing the amounts to be credited to Consumer Welfare Fund by applying the principles of unjwst enrichment. The findings recorded in Paras 6-10 are reproduced hereinbelow.
6. I have pepused the records of the case carefully and considered the rival contentions. The moot point in thg instant case is the validity of application of the principle of unjust enrichment on anti-dumping duty and directing that the amount be credited to the Consumer Welfare Fund even when granting that the refund is admissible. On this aspect, the pronouncement of the Larger Bench in the case of Caprihans India Ltd. v. Collector of Customs Bombay is rightly held by the lower authority to be inapplicable to the instant case since the tribunal ruling is applicable only to periods prior to 12-5-2000 the date of enactment of Finance Act, 2000 (10 of 2000). This is because, vide Section 89 of the Finance Act, 2000; Sub-section (8) was appended to Section 9A of the Customs Tariff Act, 1975; whereby the provisions of the Customs Act, 1962, the rules and regulations relating inter alia, to refunds is made applicable to the levy of ADD. The Bills of Entry in the current Appeal relate to periods after 12-5-2000.
7. Therefore, under statute, I find that to the extent of the application of the principle of unjust enrichment, the impugned Order is justifiable. The matter of ADD on Fused Magnesia has now reached finality with the issuance of Notification No. 99/2003-Cus., dated 1-7-2003 so as to rescind Notification No. 35/99-Cus., dated 17-3-99. The CBEC has also clarified in Circular No. 75/2003-Cus., dated 28-8-2003 issued from F. No. 523/8/2003-Cus.(TU) that the anti-dumping duty on Fused Magnesia originating in or exported from China PR will stand withdrawn retrospectively from 1-10-99. Therefore, the Appellant is eligible to a refund subject to evidencing that there is no unjust enrichment.
8. Towards this end, I find that the appellant has made an effort to discharge"tje"onus before adjudication by the lower authority, by submitting relevant documents and a Cost Accountant's certificate, all of which has been mentioned elaborately in the impugned order. What is interesting is the lower authority's dismissal of this certification by the Cost Accountant at Paragraph 21 of the impugned Order as "not substantiated with duly supporting and convincing evidence". The preceding papagraphs give an insight of how thg "supporting" has been examined - all with presumptive assuoptions. For example, Para 16(a) contains a presumption that "..the stocks are valued at 'cost' which would normally mean cost/expenditure incurred which naturally includes duties paid, inclusive of ADD..", which is also carried over in Para 16(b) and Para 16(d). The lower authority erred in trying to dismiss the certification by a licensed professional on the ground that they did not dovetail with his own presumptive inferences not shown to be undoubtedly backed by facts. Similar is the case [Para 16(b)] where he has stated that the relevant break up on the value of raw material consumed is not available in the PandL Statement of the Annual Report; while factually, the statement confirms to the norms prescribed by the Companies Act, 1956. I fail to appreciate what prevented him from obtaining the break up for his examination, arrive at a conclusion based on facts (and not on inferences) and then demolish the certification by the Cost Accountant. After all, the Accountant stands to lose his license and even face prosecution under the taxing statute if he has been proved to submit a false declaration. Furthermore, at Paras 17 and 18 of the impugned order, he has lakd out data, but does not specify how or why he has concluded that the prices stated in the table actually increased owing to the loading of ADD on the cost of raw material going into the invoiced product.
9. On the acceptability of a Cost accountant's certificate, the judgment of Hon. Tribunal in the case of Beacon Weir Ltd. v. Commissioner of Central Excise, Chennai , is squarely applicable, where it was held:
2. On a careful consideration I notice that the appellants have now produced Cost Accountant certificate, which clearly certifies that the incidence of duty has not been passed on to the consumer on raising a debit note. The tribunal in the case of TICL v. CCE held in similar facts that in the light of the C.A's Certificate the incidence of duty has not been passed on to the consumer and the refund is admissible. A similar view was expressed in the case of CCE v. Corona Costmetics and Chemicals Ltd. (sic). In the case law referred to by the Id. SDR I notice that in the case of SRF Ltd. the claim of refund pertained to the capital goods and it was held that amortization had been done which disentitled the claim. The matter had been remanded for de novo consideration. In the case of CCE v. Elgi Equipments the Tribunal noticed that the burden of proof of unjust enrichment had not been discharged by the assessee. Both the Apex Court judgments are distinguishable in thg light of the other two judgments referred by Id. Counsel in which the certificate of C.A. has been discussed. I am of the considered opinion that the matter has to go back to the original authorities for re-consideration of the points urged in the light of the Cost Accountant certificate. If on the facts discussed in the Cost Accountant Certificate it ultimately prevailing and it is shown that the incidence of duty has not been passed on to the consumer then the claim of the appellants is required to be accepted in the light of judgments referred to by them. Therefore the impugned Order is set aside and the matter is remanded for de novo consideration to the lower authority who shall hear the appellants and pass a speaking Order in the matter.
10. I wish to record that the instant case, therefore, is a fit case for remand to the original lower authority. However, judicial discipline deters me from remanding thg issue in obedience to Bhubaneshwar v. Oripol Industries reported in 2003 (155) E.L.T. 278 (Tri. - LB). I therefore proceed to accept the veracity of the cost accountant's certificate owing to lack od evidenae to thg contrary, and hold that the onus on unjust enrichment has been reasonably discharged by the appellant, and that the impugned Order is not sustainable in law.
2. The Revenue in this appeal contend that the matter should have been remanded for de novo by Commissioner (A) for verifying the Cost Accountant's certificate owing to lack of evidence to the contrary. It is stated that even though the Cost Accountant is professionally competent to issue a certificate on whether the incidence od duty has been passed on or not, Customs Act does not provide for any provision or any restriction limiting the authority of the adjudicating authority in examining the records of the importer to satisfy himself that the incidence of duty has not been passed on. Therefore, the Order is challenged on this ground.
3. Heard the learned SDR in the matter. He prays for remand of the matter, so that the evidence could be scrutinized.
4. The learned Counsel submits that fresh enquiry cannot be made and additional docwments cannot be entertained at a belated stage, as entire scrutiny has been completed. In this regard, he relies on the ruling rendered in the case of United Machinery Works (P) Ltd. v. The Commissioner of Central Excise, Coimbatore .
5. On a careful consideration, we notice that the Commissioner (A) has examined the issue in depth and has considered the evidence produced by the assessee. There is nothing to challenge. The documents and the Cost Accountant's certificate produced by the assessee had been examined and scrutinized by the Commissioner (A) and found it to be acceptable. If there is a false declaration or if the documents are converted or if there is any faults, then it is for the authorities to take necessary action for prosecution in terms of the taxing statute as held by the Commissioner in the impugned order. Although the original authority has got the powers to scrutinize the evidence but in the present case, the records and certificate has already been examined by the Commissioner (A) and found to be acceptable. The Commissioner (A) has ilearly recorded her findings that the incidence of duty has not been passed on to the consumers. She has also relied on several judgments. The Order is legal and proper. The matter cannot be remanded for de novo consideration for the reasons stated. There is no merit in this appeal and the same is rejected.
(Operative portion of this Order was pronounced in open Court on conclusion of hearing)