Customs, Excise and Gold Tribunal - Calcutta
Wool Worth (India) Ltd. vs Commissioner Of Customs (Port) on 14 July, 2005
JUDGMENT M.P. Bohra, Member (J)
1. None present for the appellant. Head Shri N. K. Mishra, JDR for Respondent. The Appellant submitted a written brief and requested vide submission dated 2/6/05 that the matter may be decided on merit on the basis of written submission.
2. We have perused the case record and submission filed by Appellant and the argument raised by learned D.R. The Appellant's main submission is that the unjust enrichment is not applicable on the capital goods and the amount deposited by them was a deposit towards potential duty liability on excess value of US Dollar 1,00,000. Therefore, their request is that the refund may be sanctioned and the appeal may be allowed.
3. The learned D.R. submits that he amount was deposited on the basis of the assessment made by the competent authority and it cannot be termed as deposit. He, further, submits that he doctrine of 'unjust enrichment' is applicable on capital goods. He relies on the following decision rendered by this Tribunal. He submits that there is a presumption under section 28D that the incidence of duty has been passed on to the buyer and in present case, the appellant failed to discharge this duty. Therefore, he submits that the refund has rightly been rejected by the Authority below. Therefore, he submits that the appeal may be dismissed.
4. In present case, the duty amount of Rs. 8,78,815/- has been deposited towards duty on the basis of assessment of the Bill of Entry submitted by Appellant. Of course, the assessment was made on the basis of Charted Engineer's certificate which incorporated written valuation of the goods and that's why subsequently reassessment was made and the duty was reduced. The Assistant Commissioner of Customs has rejected the claim of refund on the basis that the claimant has failed to discharge the burden of not passing the incidence of duty under claim to the buyers of the goods in terms of Section 28D of the Customs Act, 1962. By perusal of report it is clear that he appellant could not able to discharge the burden that incidence of duty has not been passed on the buyers. The doctrine of 'Unjust enrichment' is applicable on capital goods or the goods, which are consumed captively as held in the following of :
Union of India v. Solar Pesticide Pvt. Ltd. Reported in 2000 (116) E.L.T. 401 (S.C.) Commr. Of Customs (Import), Mumbai v. Godrej & Boyce Mfg. Co. Reported in 2001 (135) E.L.T. 878 (Tri.-Mumbai) SRF Ltd v. Commr. Of Customs, Chennai Reported in 2002 (144) E.L.T. 563 (Tri. - Chennai) In present case the appellant could not prove that the incidence of duty has not been passed on to the buyers. I do not find any infirmity in the orders of the authorities below. The appeal deserves to be dismissed.