Commissioner Of Central ... vs M/S Allied Photographics India Ltd on 18 March, 2004
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.