Importers win refund appeal for excess duty on Tetracycline import. Tribunal grants refund under Notification No.6/2002.Import of Tetracycline - On realizing that goods were eligible to exemption u/not..6/2002, importers applied for cancellation of out of charge & re-assessment of B/E - goods were under the custody of the dept. until the out of charge was given after re-assessment of the B/E – as per C.A. certificate, importer has established that the excess CVD paid has not been availed as credit & invoice value is higher than the sale price of the goods – incidence of duty has not been passed so refund allowed... ... ... Issues: Refund of excess duty paid, eligibility for exemption under Notification No.6/2002, passing on the incidence of duty to customers

In this judgment by the Appellate Tribunal CESTAT, Mumbai, the issue at hand was the refund of excess duty paid by the importers. The Commissioner of Customs had set aside the order sanctioning the refund and allowed the appeal of the Revenue. The importers had initially paid duty at a higher rate for the import of Tetracycline, but later realized their eligibility for exemption under Notification No.6/2002, resulting in a lower duty rate. The importers applied for cancellation of out of charge and re-assessment of the Bill of Entry, which was granted. The Chartered Accountant's certificate confirmed that the excess duty paid had not been passed on to customers. The Tribunal held that the importers had successfully rebutted the presumption under Sec. 28 (D) and were therefore eligible for a refund. The impugned order was set aside, and the appeal was allowed, granting the importers the refund they were entitled to. Import of Tetracycline - On realizing that goods were eligible to exemption u/not..6/2002, importers applied for cancellation of out of charge & re-assessment of B/E - goods were under the custody of the dept. until the out of charge was given after re-assessment of the B/E – as per C.A. certificate, importer has established that the excess CVD paid has not been availed as credit & invoice value is higher than the sale price of the goods – incidence of duty has not been passed so refund allowed PRADIP KUMAR & Co. Versus COMMISSIONER OF CUSTOMS, RAIGAD
Customs
2007 (11) TMI 216 - CESTAT, MUMBAI - 2008 (224) E.L.T. 566 (Tri. - Mumbai)
CESTAT, MUMBAI - AT
Dated:- 26-11-2007
C/783/2007 - A/1620/2007-WZB/C-IV/(SMB)
Customs
Ms. Jyoti Balasundaram, Vice-President [Order].- 1. By the impugned order, the Commissioner of Customs (A) has set aside the order of the Asstt. Commissioner sanctioning refund of Rs.2,96,391/- to the appellants herein and allowed the appeal of the Revenue. 2. I have heard both sides. The appellants filed Bill of Entry for import of Tetracycline and paid duty at the rate of 15% + 16% +2% + 2% (Rs. 2, 96,391) vide the TR-6 Challan dated 6-4-2005. On realizing that the goods were eligible to exemption in terms of Notification No.6/2002 dated 1-3-2002, as per which duty was payable at the rate of 15% + 0% + 2% + 2%, the importers applied for cancellation of out of charge and re-assessment of B/E; out of charge was cancelled and Bill of Entry was re-assessed on 7-4-2004 and the out of charge for re-assessed Bill of Entry was given on 12-4-2005. The Chartered Accountant's certificate produced by the importers clearly states that the entire imported consignment was sold at a price ranging between Rs. 595 to Rs. 625 and that the excess CVD paid of Rs. 2,96,391/- has not been availed as Cenvat. The invoice price of the goods is US$ 11.6 equal to Rs. 511/- and on the basis of Customs duty originally levied, the invoice value along with duty is Rs. 687/- which is higher than the sale price of the goods. The goods were under the custody of the department until the out of charge was given after re-assessment of the Bill of Entry by extending the benefit under the Notification claimed. In these circumstances, the appellant have discharged the burden cast upon them to establish that they have not passed on the incidence of duty to their customers. Since the presumption in terms of Sec. 28 (D) has been rebutted by the importers, I hold that they are eligible to refund and accordingly set aside the impugned order and allow the appeal.
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