Custom, Excise & Service Tax Tribunal
Global Ventures vs Commissioner Of Customs, Tuticorin on 17 December, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No.C/192/2007
[Arising out of Order-in-Appeal No.6/2007 dated 8.2.2007 passed by the Commissioner of Customs & Central Excise (Appeals), Trichy]
For approval and signature:
Honble Ms.JYOTI BALASUNDARAM, Vice-President
1. Whether Press Reporters may be allowed to see 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
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? :
3. Whether the Member wishes to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Global Ventures
Appellant/s
Versus
Commissioner of Customs, Tuticorin
Respondent/s
Appearance :
Shri M.N.Bharathi, Advocate Shri C.Dhanasekaran, SDR For the Appellant/s For the Respondent/s CORAM:
Honble Ms.Jyoti Balasundaram, Vice-President Date of hearing : 17.12.2009 Date of decision : 17.12.2009 Final Order No.____________ Per Jyoti Balasundaram Claim for refund of Rs.3,28,820/- has been held to be admissible to the assessees on merits; however, the amount has been directed to be credited into the Consumer Welfare Fund as the assessees had not established the non-passing on of incidence of duty to their buyers.
2) I have heard both sides. Although the submission that the prices did not change before and after assessment is not enough to hold that the burden cast upon the assessees has been discharged, the assessees have filed a certificate of the Chartered Accountant certifying that the assessees have not passed on the burden of duty to their customers and over and above this, the balance sheet shows that the amount is receivable from the revenue authorities. In these circumstances, the decision of the Honble Madras High Court in CCE Chennai Vs Saralee Household & Bodycare India (P) Ltd.
[2007 (216) ELT 684 (Mad.)] holding that when the non-passing of duty burden has been confirmed by the certificate issued by the Chartered Accountant and the amount of duty paid was kept as receivables from the government in the books of account, refund is admissible, is directly applicable to the facts of the present case and following the ratio of the above judgement, I set aside the direction for credit of the refund amount to the Consumer Welfare Fund and direct that the amount to be refunded to the assessees as they have established that they are not hit by the bar of unjust enrichment, and allow the appeal.
(Dictated and pronounced in open court) (JYOTI BALASUNDARAM) VICE-PRESIDENT gs 1 2