2006 (1) TMI 389

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....that they have paid the duty in excess, they filed refund claim. Along with the refund claim, they submitted details of pre-import and post-import invoice prices along with extracts from the balance-sheet to show that the incidence of duty had not been passed on to the customers. However, the Original Authority rejected the refund claim. The respondents appealed to the Commissioner (Appeals). They submitted that the Original Authority erred in transferring the refund claim to the consumer welfare fund on account of unjust enrichment. Even though, the Original Authority himself had observed that the prices of the imported items photo resister chemicals remained the same prior to and post importation. This clearly showed that the excess amoun....

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.... (89) E.L.T. 247 (S.C.)] and also the Tribunal's decision in the case of Commissioner v. Kores Ltd. [2003 (156) E.L.T. 1036] (iii)   Further the Tribunal in the case of MRF Ltd. v. Commissioner reported in 2002 (149) E.L.T. 801 (Tri.), citing Mafatlal case has held that (a)      If invoice is not separately showing the duty element, it does not mean that manufacturer is not passing on the incidence of duty to the customers not does it flow there from that the manufacturer is absorbing duty himself. (b)      Ordinarily no manufacturer will sell his products at less than the cost price plus duty and if he does so he cannot survive in business. Only in case of distress sale s....

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....58,312/- pertains to other advances and therefore balance Rs. 50,346/- cannot be attributed to the amount of refund being claimed i.e. Rs. 60,101/-. This further supported by the details of sub-schedule submitted by the respondents as on 20th September, 2003 copy of which is annexed in Annexure II to the cross objections. The above contention of the Department clearly indicates that they neither applied their mind to the Balance Sheets of the Respondent nor perused the finding of Hon'ble Commissioner of Customs (Appeals) in this regard. In this connection it is submitted that the above referred amounts indicated in Balance Sheet schedules for the years form 1998-99 to 2002-03 varying from Rs. 13,247/- to Rs. 1,08,658/- are in fact furnished....