Custom, Excise & Service Tax Tribunal
M/S. Daimler Chrysler India P. Ltd vs Commissioner Of Customs (Import), ... on 11 April, 2014
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No. C/39/07-Mum
(Arising out Order-in-Appeal No. 210 (Gr.VB)/2006 (JNCH) dated 23.10.2006 passed by the Commissioner of Customs (Appeals), Nhava Sheva)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see No
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 Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
M/s. Daimler Chrysler India P. Ltd.
Appellant
Vs.
Commissioner of Customs (Import), Nhava Sheva
Respondent
Appearance:
Shri Mayank Jain, Advocate for the appellant Shri Devendra Nagvenkar, (AR) for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Date of hearing : 11/04/2014 Date of decision : 11/04/2014 O R D E R No:..
The appellant is in appeal against the impugned order rejecting their refund claim of revenue deposit paid by them at the time of clearance of imported goods.
2. The brief facts of the case are that at the time of importation of goods as there was a dispute of valuation, therefore they were clearing on 1% of revenue deposit. Later on when the dispute was settled they filed a refund claim of 1% revenue deposit made by them at the time of clearance of goods. The Adjudicating Authority relying on the Public Notice dated 29.11.1991 allowed the refund claim. On appeal before the Commissioner (Appeals), the refund claim was rejected on the ground that the refund claim is hit by bar of unjust enrichment. Aggrieved, the appellant is before me.
3. The ld. counsel for the appellant submits that the refund claim was sanctioned as per Public Notice dated 29.11.1991 and same is applicable to the ld. Commissioner (Appeals) also and as per the Public Notice, it is clearly mentioned that the refund would also be admissible if amount related to revenue deposit or fines and penalties since they cannot be considered as duty. But the Commissioner (Appeals) did not follow the instructions. Further more, he submits that it is a revenue deposit made by them at the time of clearance to secure the interest for consideration of the issue of valuation. As the similar issue came up in IDMC Ltd. 2013 (289) ELT 389 wherein this Tribunal has held that at the time of clearance of goods, the revenue deposit made by them does not form part of the duty. Therefore, provisions of bar of unjust enrichment are not applicable, hence allowed the refund claim. He further submits that if at all it is considered that bar of unjust enrichment is applicable this also they have discharged their burden to prove that duty incidence has not been passed on the buyer as they have been able to produce the Chartered Accountants certificate to that effect and shown the revenue deposit as receivable from the customs. These facts have not been considered by the Commissioner (Appeals). Therefore, impugned order deserves to be set aside.
4. On the other hand, ld. AR supported the impugned order.
5. Heard both sides. Considered the submissions.
6. If it is observed that bar of unjust enrichment is applicable, then also the appellant has discharged their burden to prove that duty incidence has not been passed on the buyer as they have been able to produce the Chartered Accountants certificate to that effect and shown the revenue deposit as receivable from the customs. Therefore, without going into the merits, I hold that they have passed the bar of unjust enrichment. Therefore, they are entitled for refund claim.
7. In these circumstances, impugned order is set aside, appeal is allowed with consequential relief. The Adjudicating Authority is directed to implement this order within 30 days from today.
(Dictated in Court) (Ashok Jindal) Member (Judicial) //SR 3