Customs, Excise and Gold Tribunal - Delhi
Commr. Of Customs, Air Cargo Unit vs Maruti Udyog Ltd. on 1 May, 2003
Equivalent citations: 2003(88)ECC584, 2003(155)ELT523(TRI-DEL)
ORDER V.K. Agrawal, Member (T)
1. In this appeal, preferred by Revenue, the issue involved is whether the principle of unjust enrichment is applicable to the refund claimed by M/s. Maruti Udyog Ltd.
2. Shri U. Raja Ram, learned D.R., submitted that the Respondents had imported Pipe Comp Catalyst in April, 1995 and cleared the same on payment of customs duty. Subsequently they filed a refund claim on the ground that as the goods imported by them were meant for use in the manufacture of motor vehicle the duty at concessional rate was leviable under Notification No. 49/95 under Sub-heading 8421.39 of the First Schedule to the Customs Tariff Act; that the Asstt. Commissioner under Order-in-Original No. 129/99, dated 16-2-99 sanctioned the refund claim but ordered the same to be credited to the Consumer Welfare Fund; that however, on appeal, preferred by the Respondents, the Commissioner (Appeals) under the impugned Order has allowed the appeal on the ground that the documentary evidence adduced by them was sufficient to prove that incidence of duty paid in excess had not been passed on to the buyers of the car relying upon the decision in the case of Hero Honda Motors Ltd. v. CC., 2000 (126) E.L.T. 1014 (T) = 2000 (40) R.L.T. 597 (CEGAT). The learned D.R., further, submitted that the duty paid by the Respondents at the time of clearance from the Customs, must have been taken into consideration while working the cost of endproduct and as such incidence of duty might have been passed to the customers; that no manufacturer would be charitable enough to exclude the customs duty paid on the raw material in the price of the finished products; that therefore, the principle of unjust enrichment is applicable and the duty of which refund has been sanctioned is to be deposited in the Consumer Welfare Fund. He relied upon the decision of the Supreme Court in the case of U.O.I. v. Solar Pesticides Pvt. Ltd., 2000 (116) E.L.T. 401 (S.C.).
3. Opposing the appeal Shri B.L. Narasimhan, learned Advocate, submitted that catalytic converter is a device which is fitted to the exhaust of the car to control environmental pollution in metropolitan towns; that the Commissioner (Appeals) had considered the documents placed by them to show that the incidence of duty had not been passed on by them to their customers; that one of the documents considered by the Commissioner (Appeals) was the balance-sheet of the Respondents for the year 1995-96 to 2000-01 wherein the customs duty paid in excess, of which refund claim had been sought by them, has been shown in their balance-sheet as an amount recoverable from the Customs. He, further, submitted that the Commissioner (Appeals) had considered the certificate dated 8-1-2001 of M/s. D.P. Kapur & Co., Chartered Accountants, wherein it has been certified that the amount of Rs. 38,03,340/- being the amount recoverable from Customs authorities in the balance-sheet under grouping "Other Current Assets". Finally, he submitted that invoices pertaining to sale of car standard and car standard with catalytic converter in April, 1996 indicated no change in the price that in September, 1995; that the decision in the case of Hero Honda Motors Ltd. is squarely applicable as in the said decision the Tribunal had held that the incidence of duty had not been passed on to the customers on the basis of balance-sheet and C.A. certificate. The learned D.R. in reply mentioned that the facts in the case of Hero Honda Motors are different as the Appellants therein had agreed to pay the amount arising out of loading of provisional basis.
4. We have considered the submissions of both the sides. We observe that the Commissioner (Appeals) has allowed the refund of the duty claimed by the Respondents after being satisfied that the documentary evidence produced by them goes to show that burden of incidence of duty had not been passed on to the buyers of the car. In the appeal filed by the Revenue no material has been brought on record to rebut the findings of the Commissioner based on the balance-sheet, C.A. certificate, and prices of the car remain unchanged brought on record by the Respondents. In the grounds of appeal it has been merely mentioned that Maruti Udyog Ltd. must have taken the duty paid by them in consideration while working the cost of endproduct. No material, in support of this ground, has been adduced. The Tribunal in the case of Hero Honda Ltd. has held as under : -
"As regard the factual position also, we find that the details shown in the appellants balance-sheet and annual report show the disputed refund amounts as receivable from Government. Further, entries in their journals extracted at pages 225-226 of the Appeal Papers and the Chartered Accountant's certificate at pages 231-235 thereof also indicate that the appellants have not passed on the incidence of provisional deposit to the customers. We are also satisfied that the appellants have been able to show that the components imported by them have not been consumed in the manufacture of the final products."
Thus we find no reason to interfere with the impugned Order and reject the appeal filed by the Revenue.