Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of Customs vs Bharat Fritz Werner Ltd. on 9 August, 1999
Equivalent citations: 1999(66)ECC789
ORDER V.K. Ashtana, Member (T)
1. The COD application is allowed by condoning the delay, as the delay is of only seven days.
2. In this revenue appeal against the Order-in-Appeal No. 1435/95 dated 2.8.95, the said order is assailed on the grounds that the Chartered Accountant's certificate furnished by the importer being a bald one, therefore, was of not much use to conclusively prove that the incidence of duty was not passed on to the ultimate consumer which in this case is M/s. Heavy Vehicles Factory, Ministry of Defence, Govt. of India. The order impugned is also assailed on the ground at the present respondents assertion that the sale was based on earlier contract with the buyer has not been substantiated by documentary evidence. Therefore, the revenue contends that the relief granted in the order impugned is without proper verification of the merits.
3. Heard Shri S. Sankaravadivelu, learned DR who reiterates the grounds of appeal as summarised above.
4. Heard Sri Muthu Venkatraman, learned Advocate for the respondents, who submits that it would not be correct to simply brush away the Chartered Accountant's certificate, as the same is obviously based on books of accounts of the importers. Similarly he submits that the contract was entered into at the date much prior to the date of import of the equipment and, therefore, the sale thereof to the ultimate buyer was clearly in terms of the contract; otherwise why the respondents should import the goods? He further submits that the sale is to the unit of Government of India and, therefore, there was no reason to brush aside these documents.
5. We have carefully considered the rival submissions and records of the case. As the matter lies on a short compass, we grant waiver and stay and consider the appeal. We find that the revenue contends that the learned Commissioner (Appeals) had blindly relied on the Chartered Accountant's certificate, which in turn did not disclose details as to how the incidence of duty was not passed on. We find that this is not a fatal defect, but is a curable one. Therefore, this matter needs to be verified in more details. We have also considered the question of sale being preceded by a contract. This also needs to be again considered in depth and the present respondents need to be given an opportunity to plead in this behalf along with whatever documents available with them.
6. In view of the aforesaid position, there is no alternative before us but to set aside the Order-in-Appeal impugned and the attendant Order-in-Original and to remand the matter for de novo consideration to the original authority in the above terms. The revenue appeal is allowed by way of remand with the above directions.