Custom, Excise & Service Tax Tribunal
Cc, Tuticorin vs M/S. Dcw Ltd on 11 May, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
C/170/2003 & C/CO/62/2004
(Arising out of Order in Appeal No. 28/2003 dated 25.02.2003, passed by the Commissioner of Customs and Central Excise, (Appeals) Trichy).
For approval and signature
Honble Ms. JYOTI BALASUNDARAM, Vice President
Honble Dr. CHITTARANJAN SATAPATHY, Technical Member
_________________________________________________________
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CC, Tuticorin : Appellants
Vs.
M/s. DCW Ltd. : Respondents
Appearance Shri C. Rangaraju, SDR, for the appellant Shri C. Sethapathy, Adv., for the respondent CORAM Ms. JYOTI BALASUNDARAM, Vice President Dr. CHITTARANJAN SATAPATHY, Technical Member Date of hearing : 11.05.2010 Date of decision : 11.05.2010 Final ORDER No._____________ Per: Jyoti Balasundaram The brief facts of the case are that the assessees herein imported Vinyl Chloride Monomer vide Bill of Entry dated 23.02.1999 and cleared the goods on payment of duty. Subsequently, due to budget changes vide Notification No. 22/99-Cus dated 28.02.99, the CVD was reduced from 18% to 16%. Accordingly, the above Bill of Entry was re-assessed. This resulted in excess payment of Rs. 2,88,735/- for which the assessees filed a claim for refund. Show Cause Notice proposing the rejection of the claim was adjudicated by the Assistant Commissioner of Customs, rejecting the claim as unsubstantiated. The Commissioner (Appeals) accepted the contention of the assessees that the bar of unjust enrichment did not operate because for the reason that the Chartered Accountant has certified that the sum has not been charged to the price of the final product PVC Resin and that the excess duty paid by the assessees was held as receivables from Customs and also that the Range Superintendent has certified that the assessees had not availed modvat credit in excess of 16%. Hence this appeal by the Revenue.
2. We have heard both sides. The Chartered Accountants certificate and the Range Superintendents certificate and also Annual Report for the year 1999-2000, filed by the assessees shows the consolidated figure of Rs. 156.57 lakhs as balance with Customs and Central Excise etc. Ld. Counsel for the assessees submits that the amount mentioned in the balance sheet includes the amount of refund although there is no separate breakup for the amount relatable to the Bill of Entry in question. We find that the assessees have subsequently discharged the burden cast upon them to prove that they did not pass the incidence of duty on the buyers, in the light of the above. We, therefore, uphold the impugned order and reject the appeal.
2. The cross-objection is only in the nature of comments upon/replay to the Revenues appeal and is dismissed.
(Order dictated and pronounced in the open Court)
(Dr. CHITTARANJAN SATAPATHY) (JYOTI BALASUNDARAM)
TECHNICAL MEMBER VICE PRESIDENT
BB
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