TaxTMI 
TaxTMI 
2004 (2) TMI 651
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....briefly stated, are as under:- The petitioner-Company is engaged in the business of importing, exporting and trading in various goods. In the year 1995, the Government of India decided to issue election identity cards and, therefore, a huge quantity of holograms containing the national emblem of three lions and Ashok Chakra was required for affixing such holograms on identity cards. The petitioner-Company was awarded contracts by the State Governments of Madhya Pradesh and Rajasthan for supply of holograms. Similar contracts were awarded by the other State Governments also to other suppliers. The hologram is a three dimensional image made by means of a laser beam and the process of manufacturing hologram is by way of a special kind of embossing. Although a plate of combination of plastic and aluminium is the material on which such printing is made, the identity of hologram is imparted only because of the printing and, therefore, it is regarded as an article of printing industry falling under Chapter 49 of the Customs Tariff. Various other importers had imported such holograms at Ahmedabad Air Cargo Complex and they were assessed to duty under Chapter 49 and, therefore, the....
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....at the petitioners had entered into a contract with M/s. Pankti International Ltd. to sell the hologram at a fixed price which was inclusive of all taxes. The price fixed by the petitioners at that time may have taken into consideration the duty payable at that time which was at that time to be 45% under Chapter 49. However, subsequently, if the duty rate is increased or decreased, the petitioners were not entitled to modify the price at which they were selling the holograms to M/s. Pankti International Ltd. Therefore, it cannot be said that the petitioners had passed on the differential duty element between 65% under Chapter 39 and 45%under Chapter 49 to M/s. Pankti International Ltd. because the prices were fixed under a contract inclusive of all taxes. Hence, the Commissioner (Appeals) set aside the finding given by the Deputy Commissioner that the petitioners had passed on the burden of differential duty to M/s. Pankti International Ltd. The Commissioner(Appeals) also relied on the decisions of the CEGAT taking the view that when the prices are fixed under a contract which did not provide for an element of duty, then the bar of unjust enrichment would not be attracted when the ....
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.... Section. 27 Claim for refund of duty.-(1) Any person claiming refund of any duty and interest, if any, paid on such duty- (i) paid by him in pursuance of an order of assessment; or (ii) borne by him, may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Customs or Deputy Commissioner of Customs- (a) ...................... (b) in any other case, before the expiry of six months from the date of payment of duty and interest, if any, paid on such duty, in such form and manner as may be specified in the regulations made in this behalf and the application shall be accompanied by such documentary or other evidence (including the documents referred to in Section 28C) as the applicant may furnish to establish that the amount of duty and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other persons. ... ... ... .... .... (2) If, on receipt of any such application, the Assistant Commissioner of Cus....
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....des that interest is to be paid to the applicant on the duty in question from the date immediately after the expiry of three months from the date of receipt of such application (for refund) till the date of refund of such duty. There is no dispute about the fact that the petitioners had made the original application for refund of excess customs duty (65% less 45%) on 31.10.1995 and, therefore, the petitioners have claimed interest for the period from 31.1.1996onwards. Even in respect of the petitioner's claim for interest for delayed payment of refund amount of Rs. 14,83,303/-, the respondent authorities have paid the petitioners interest for the period from 31.1.1996 till the date of payment of the said refund amount which worked out to Rs. 9,56,729/- and which was paid to the petitioners on12.7.2000. There is no reason for the respondent authorities to justifiably refuse payment of interest for the delay in payment of refund amount of Rs. 5,21,99/- which was ultimately sanctioned by the Commissioner (Appeals) by his order dated 26.2.2001 and actually paid to the petitioners on 30.6.2001. 10. At this stage, we may also note the departmental instructions as contained in the ....
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.....e., where an application for refund has been filed." In note (a), it is clearly mentioned that even if the Assistant Collector had allowed a refund of Rs. 10,000/- and on appeal the amount decided to be refunded is Rs. 30,000/-, then interest would be payable on the amount finally decided to be refunded i.e., on Rs. 30,000/- from the expiry of three months from the date of the refund application till its payment. It is only where the appellate authority determines the refund amount as less than the amount ordered to be refunded by the original authority that the interest would be payable on the lesser amount. 11. In the facts of the instant case, while the Deputy Commissioner had determined the refund amount of Rs. 14,83,303/-, the appellate authority allowed the additional refund amount of Rs. 5,21,99/- and, therefore, there is no justification for denying the petitioners interest of the delay in payment of the said amount of Rs. 5,21,99/- for the period from the date of expiry of three months from 31.10.1995 when the petitioners had made the application for refund of the entire amount of Rs. 20,72,23/- out of which Rs. 14,83,303/- was directed to be refunded by the Deputy ....