Custom, Excise & Service Tax Tribunal
In The Customs, Excise And Servece Tax ... vs Cc (Acc & Import) Mumbai on 9 September, 2011
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II In Appeal No. C/567/03 (Arising out of Orders-in-Appeal No. 220/2003 APCL(AIR) Dated 10.06.2003 passed by the Commissioner of Customs Air Cargo Sahar, Mumbai- 400 099.) For approval and signature: Honble Shri Sahab Singh, Member (Technical) 1. Whether Press Reporters may be allowed to see : No 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 Lordships wish to see the fair copy : yes of the order? 4. Whether Order is to be circulated to the Departmental : yes authorities? Orient Cerlane Limited : Appellant Versus CC (ACC & IMPORT) Mumbai : Respondent
Appearance Shri J. C. Patel, advocate : For Appellant Shri S. R. Bhatti, D.C.A.R. : For Respondents CORAM:
Honble Shri Sahab Singh, Member (Technical) Date of Hearing : 09.09.2011 Date of Decision: 09.09.2011 ORDER NO...................................................... Per: Sahab Singh This is an appeal filed by the M/s. Orient Cerlane Limited against the Order in Appeal No. 222/2003 APCL (AIR) dated 10th June 2003.
2. Brief of the facts is that appellant had imported goods in May 1997 classifying the goods under Custom and Central Excise Traiff Headings No. 85.14. The Assistant Commissioner of Customs rejected the contention of the appellant and classified the goods under Heading 81.02 by his Order dated 3rd October 1997. In pursuance of this order appellant paid the duties under Heading 81.02 but they filed an appeal before Commissioner of Custom (Appeals) who by his order dated 12 May 1998 held that the goods were classifiable under Heading 85.14 as claimed by the appellant.
3. In pursuance of the order passed by the Commissioner (Appeals) appellant had filed for refund of claim Rs. 1,22,324/- on account of Basic duty and Additional duty paid by them in excess. The claim was sanctioned by the Deputy Commissioner but ordered the amount to be credited to the consumer welfare fund on account of unjust enrichment. Against said order of the Deputy Commissioner, appellant has filed appeal before Commissioner Customs (Appeal) who vide impugned order has rejected their appeal on the ground that they failed to submit any documentary evidence in support of their case and the appellant is before this Tribunal against said impugned order.
3. Learned advocate appearing on above of the appellant submitted that it can be seen from documents that duty is paid by them under Heading 81.02 as per direction of the Deputy Commissioner. He submitted that since the excess Basic Customs duty had not been included in its expenses by them but was taken under the head of assets being recoverable from the Government, the same did not form part of the cost of its final product and consequently had not been passed on to the buyer of the final product. As regards the excess additional duty of customs (CVD), though initially the Appellant had taken MODVAT credit but same was denied to them. He therefore stated the burden of the excess basic duty as well as the excess additional duty was not passed by them to the customers.
4. During the course of personal hearing of the Commissioner wanted to know whether there was any change. In price of good prior to and after payment of the excess duty. The appellant vide its letter dated 30th April 2003 submitted copies of the invoices of its final products sold prior to and after the payment of excess duty. The Chartered Accounted has also certified that burden of the duty was none passed to the customers. He submitted that the Commissioner (Appeal) has not gone through this evidence and rejected their appeal on the ground that appellant failed to submitted any documentary evidenced.
5. Learned DR was reiterated the finding of Commissioner (Appeal).
6. After hearing both the sides I find that the letter dated 30th April 2003 was submitted by the appellant to the offices of the Commissioner (Appeal) on 30th April 2003 enclosing there with copies of invoices issued prior to and after dated of payment of excess duty. The appellant also submitted certificate of the Chartered Accountant. Therefore, I find that the Commissioner (Appeal) has not gone through this evidence submitted by the appellant. The Order in Appeal therefore is set aside and matter remanded back to the Commissioner (Appeal) to decide the matter afresh after examining the evidence the submitted by the appellant and after giving an opportunity to the appellant of being heard.
7. Appeal is allowed by way of remand.
(Dictated in Court)
(Sahab Singh) Member (Technical)
Sp/
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