Customs, Excise and Gold Tribunal - Calcutta
A.K. Enterprise vs Commr. Of Customs (Port) on 3 October, 2005
ORDER M.P. Bohra, Member (J)
1. Heard Shri B.N. Chattopadhyay, Id. Consultant for the appellants and Shri Uday Kumar, Id. JDR for the respondents.
2. Shri Chattopadhyay submits that the total cost of importation of Damar Batu is of Rs.31,24,095.75 and the sale was to the tune of Rs.24,04,150.90. In addition to that, there had been a closing stock of Rs.97,056.00 being total of Rs.25,01,206.90. Hence, there was an over all loss of Rs.6,22,888.85. He submits that it is clear that the appellant did not include the excess Customs duty in the appellant's product while selling them to their customer. The appellant eschwed the duty paid in excess. He, therefore, submits that the allegations that they had realized the excess duty paid goods is not maintainable. He submits that in the invoice, they have not shown duty portion separately. They have also submitted a Certificate issued by the Chartered Accountant. The question of limitation in the in the present case does not arise because the duty was paid under protest. He relies on the following decisions:
(i) GMMCO Ltd. v. Commr. of Customs, Chennei 2004(177) ELT 848 (Tri.-Chennai);
(ii) Commr. of Central Excise, Mumbai II v. Allied Photographics India Ltd. ;
(iii) Modipon Fibres Company v. Commr. of Central Excise, Ghaziabad ;
(iv) National Winder v. Commr. of Central Excise, Allahabad ;
He, therefore, submits that the appeal may kindly be allowed.
3. Shri Uday Kumar supports the impugned order.
4. In the present case, I find that the appellants filed appeal against the order of assessment. Therefore, the question of time bar does not arise. When the appellant has submitted an appeal, then it has to be treated that the payment has been made under protest and the question of limitation does not arise. This view has been expressed by the Hon'ble Supreme Court in the case of National Winder v. Commissioner of C.Ex., Allahabad and Commr. of Central Excise, Mumbai II v. Allied Photographics India Ltd. . Therefore, the question of limitation does not arise. In the present case, the appellants imported the goods and sold to the buyers in such conditions. In terms of Section 28(C) of the Customs Act, 1962, the appellant was required to indicate in all sale invoices, the amount of duty which would form part of the sale price. In the present case, the appellants did not submit any sale invoice. Neither the appellants had submitted any proof regarding incident of duty. Under Section 28(D) of the Act, the presumption is that every person who paid duty on the goods would be deemed to have passed on full incidence of duty to the buyers of such case. Unless he proved otherwise. It was incumbent upon the appellants to prove any documentary ... evidence to rebut the presumption. The appellants failed to produce such evidence. Mere submission of Chartered Accountant's Certificate is not sufficient. Therefore, the refund claim is hit by bar of unjust enrichment and has been rightly rejected by the Commissioner (Appeals). In view of the above discussions, I do not find any force in the appeal. Consequently, I dismiss the appeal.