Custom, Excise & Service Tax Tribunal
Muneer Enterprises vs Commissioner Of Customs And Service Tax ... on 27 March, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Application(s) Involved: C/Stay/21138/2014, C/Stay/21142/2014, C/Stay/21144/2014, C/Stay/21145/2014 in C/21021/2014-SM, C/21022/2014-SM, C/21023/2014-SM, C/21024/2014-SM Appeal(s) Involved: C/21021/2014-SM, C/21022/2014-SM, C/21023/2014-SM, C/21024/2014-SM [Arising out of Order-in-Appeal No. 509-513-2013 dated 27/12/2013 passed by Commissioner of CUSTOMS , BANGALORE ] For approval and signature: HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER 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 Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? Muneer Enterprises Masjid -e-iiahai Compound, Hampi Road, HOSPET - 583201 KARNATAKA Appellant(s) Versus Commissioner of Customs and Service Tax Bangalore-cus C.R. BUILDING,QUEENS ROAD, P.B.NO. 5400, BANGALORE, - 560001 KARNATAKA Respondent(s)
Appearance:
Shri B.G.CHIDANANDA URS, Advocate #520, AMRUTH NIVAS, 7TH MAIN, 13TH CROSS, RMV 11 STAGE, DOLLARS COLONY, BANGALORE -560094 For the Appellant Shri R. Gurunathan, Addl. Commissioner(AR) For the Respondent Date of Hearing: 27/03/2015 Date of Decision: 27/03/2015 CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER Final Order No. 20890-20893 / 2015 Per : B.S.V. MURTHY In all the 4 appeals, the issue involved is common and therefore all the appeals are taken together and a common order is passed. The appellants had exported iron ore and on finalization of provisional assessment, it was found that appellants had paid excess export duty. Consequently refund claims were filed by the exporter and on the basis of a Chartered Accountant certificate produced which certified that appellant had not passed on the export duty liability to the purchaser and after taking note that the FOB value included duty liability also, the original authority sanctioned the refunds after conducting a scrutiny of the claims.
2. On an appeal filed by the Revenue in all the cases, the Commissioner(Appeals) held that appellant has not discharged the burden of proof that there was no unjust enrichment and mere production of a Chartered Accountant certificate was not enough and the original authority should have examined the books of accounts, balance sheet etc. before coming to the conclusion that there was no unjust enrichment. The appellant is in appeal against this decision in all the cases of refund claims.
3. The learned advocate submits that Honble High Court of Andhra Pradesh in the case of Asia Pacific Commodities Ltd. Vs. Asst. Commissioner of Customs, Kakinada-I [2012(280) ELT 481 (AP)] considered an identical case and came to the conclusion that in the case of exports where according to the agreement the FOB value included, the export duty and the seller is expected to bear the duty/tax on exported goods, the question of unjust enrichment is not applicable. He submits that the decision was not considered by the officers of the Revenue who decided the appeal nor the Commissioner(Appeals) since this was not placed before him.
4. Learned AR would submit that the matter may be remanded to the Commissioner(Appeals) to consider the decision of the Honble High Court of AP and its applicability to the facts of the case. Alternatively, he would submit that stay may be granted and final decision may be taken later.
5. I am not inclined to accept the submissions of the learned AR either for remand or for the grant of stay and keeping the matter pending. This is a case where the Commissioner(Appeals) had considered the facts viz. the export sale realization was under FOB value; according to the agreement, FOB value included export duty and was on account of the seller; there was a Chartered Accountant certificate produced showing that burden of export duty was not passed on. The very same facts were considered by the Honble High Court of Andhra Pradesh and Honble High Court also decided in favour of the exporters. Under the circumstances, it would only increase the furtherance of litigation by remanding the matter when facts are clear. Therefore the requirement of predeposit is waived and the appeals are taken up together for final decision.
6. I have considered the submissions. In this case, the export FOB value was included the duty element and there is no dispute on this fact. Appellant had produced a Chartered Accountant certificate. The decision of the Honble High Court of Andhra Pradesh, in my opinion, is applicable to the facts of this case clearly. Paragraph 21 & 22 of the decision of the Honble High Court are relevant and are reproduced below:-
21.?As per the above clause all export duties, taxes, levies etc., on cargo present or future in India shall be for sellers account and all import duties, taxes, levies etc., present or future in the country of destination shall be for buyers account. Further all taxes/duties on freight and vessel is to vessel owners account. Buyers obligations are found in Part B of FOB contract. As per point B2 read with B6 the buyer must obtain any import license where applicable and pay all customs formalities for the import of goods and where necessary for their transit through any country. From a perusal of the FOB contract terms in Incoterms, there cannot be any doubt that it is always the duty and obligation of the seller to bear the costs of customs formalities as well as the duties, taxes and charges payable upon export.
22.?In these appeals, the invoice value is also FOB value. Therefore it cannot be said to include the duty paid under the Cess Act and, therefore, the presumption under Section 28D of the Act stands rebutted by the appellants. The CCE (A) went utterly wrong in construing the point A6 ignoring paragraph 14 of Incoterms as well as the sale contract between the appellant and buyer. Therefore the CESTAT was justified in holding that the finding of CCE (A) that FOB value included the cess is unsustainable. We accordingly hold that the principle of unjust enrichment does not bar the refund claims under Section 27 read with 28D of the Act and the point is accordingly answered in favour of the appellants.
7. In my opinion, in this case, the decision of the Honble High Court is clearly applicable. Therefore all the appeals are allowed with consequential relief, if any.
(Order pronounced and dictated in open court) B.S.V.MURTHY TECHNICAL MEMBER Raja 5