2001 (12) TMI 696

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....ing 98.01 of the tariff. Notice was issued to it accepting the correctness of this claim for refund and proposing to deposit the amount to the Consumer Welfare Fund and not to the claimant on the ground that it has not been shown that the incidence of duty has not been passed on. The Assistant Commissioner, after considering the reply of the claimant, concluded that it has not been shown that the incidence of duty has been passed on and ordered the amount to be credited to the Consumer Welfare Fund. The importer appealed this order. Disposing of the appeal, the Commissioner (Appeals), relying substantially on the decision in Solar Pesticides Pvt. Ltd. v. Union of India - 1992 (57) E.L.T. 201, held that in the case of goods which were not so....

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....owing that the incidence of duty has not been passed on, is not acceptable, Paragraph 20 of the Supreme Court judgment in Union of India v. Solar Pesticides Pvt. Ltd. makes this clear. It says "to claim refund of duty it is immaterial whether the goods are used by the importer himself and the duty thereon passed on to the purchaser of the finished product or that the imported goods are sold as such with the incidence of lax being passed on to the buyer. In either case the principle of unjust enrichment will apply." A distinction has to be made between the payment of tax and the incidence of that tax. An importer of any goods initially pays the duly burden which rests on him. This is what the Assistant Commissioner said and he is right. Howe....

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....We are however not concerned with this. We are concerned with the applicability of sub-section (2) of Section 27. In that regard, he has specifically concluded that the incidence of duty has not been shown to have passed on. If he has concluded otherwise, his order would not have been appealed by the Commissioner before the Commissioner (Appeals). 7. The question before the Tribunal in Metro Tyres Ltd. v. CCE was not the applicability of the provisions of sub-section (2) of Section 11B of the Central Excise Act, which contain the same provisions with regard to passing of incidence of duty finding in sub-section (2) of Section 27 of the Customs Act. We have to keep in mind the provisions of sub-section (2) of Section 27 of the Custom....