Custom, Excise & Service Tax Tribunal
M/S. Maithan Ceramics Ltd vs Assistant Commissioner Of Customs on 24 August, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH AT HYDERABAD Bench Division Bench Court I Appeal No.C/789/2007 (Arising out of Order-in-Appeal No.37/2007(V)CH dt. 20/08/2007 passed by CC,CE&ST(Appeals), Visakhapatnam) For approval and signature: Honble Ms. Sulekha Beevi, Member(Judicial) Honble Mr. Madhu Mohan Damodhar, Member(Technical) 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 their Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? M/s. Maithan Ceramics Ltd. ..Appellant(s) Vs. Assistant Commissioner of Customs, Visakhapatnam ..Respondent(s)
Appearance Shri Prem Ranjan Kumar, Advocate for the appellant.
Shri Nagraj Naik, Deputy Commissioner(AR) for the respondent.
Coram:
Honble Ms. Sulekha Beevi, Member(Judicial) Honble Mr. Madhu Mohan Damodhar, Member(Technical) Date of Hearing:24/08/2016 Date of decision:24/08/2016 FINAL ORDER No._______________________ [Order per: Madhu Mohan Damodhar] The facts of the case as put forth by the appellants are as follows:
i. The Appellant carried on the business of manufacture of fused magnesia refectories. They imported fused magnesite originating from China. Customs authorities have levied anti-dumping duty on the imports of fused magnesite from China as per CN 35/99 dated 17.03.1999. The Appellant had paid the said under protest and cleared the goods.
ii. Appeals were filed against the above said notification by various refactories (of which the Appellant is a member) before the Honourable CESTAT. By an order dated 19.01.2000, the Tribunal in the case of Birla Periclase V/s Designated Authority held that the finding of Designated Authority in respect of anti dumping duty on fused magnesia cannot be sustained. The appeal filed by the Designated Authority against the order of the Tribunal was dismissed by the Honourable Supreme Court by an order dated 10.05.2001.
iii. Subsequently, the Appellant had filed refund claim of the anti-dumping duty paid for an amount of Rs.3,28,020/- before the Assistant Commissioner of Customs, Visakhapatnam. The Appellant had filed the details of the cost structure, profit and loss account and balance sheet for the relevant period, certificate from Cost Accountant, purchase orders placed on the Appellant and other relevant details to show that they had not passed on the burden of anti-dumping duty levied and paid under protest. The Assistant Commissioner directed the anti-dumping duty to be credited to Consumer Welfare Fund. Aggrieved, appellant filed an appeal before the Commissioner of Customs (Appeals), Visakhapatnam, who dismissed the appeal. Hence this appeal.
2. During the hearing, Ld. Counsel for appellant Sri. Prem Ranjan Kumar submitted that all necessary documents as also C.A. certificate had been produced before lower authority who has however ignored the same and denied the refund on the ground that declared cost of fused magnesia is much more than the assessable value of the goods, which is not a ground for rejection of refund as per provisions of Section 27 of Customs Act,1962.
3. On behalf of department Ld. AR Nagaraj Naik reiterated the findings in the impugned order.
4. The issue is whether the refund of anti dumping duty is hit by the bar of unjust enrichment. It is not disputed that the appellant are themselves in the business of manufacture of fused magnesia refractoriness. They have obviously imported magnesia for their own purpose. In any case, they have adduced sufficient proof including C.A. certificate to show that the incidence of duty (ADD) has not been passed on to another. In case the department still had doubts, the onus was on them to adduce evidence to prove the contrary as has been held in a number of decisions. It is also not disputed that Rs.34 lakhs of ADD has been shown as Balance with Central excise authorities in balance sheet, which means that the appellant had included these amounts as receivables.
5. In view of the facts and evidence placed before us, we are able to conclude that the appellant are eligible for refund of Rs.1,20,220/-. In the result the appeal is allowed with consequential reliefs, if any.
(Operative part of this order was pronounced in court on conclusion of the hearing) (MADHU MOHAN DAMODHAR) MEMBER(TECHNICAL) ( SULEKHA BEEVI, C.S.) MEMBER(JUDICIAL) Raja..
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