2019 (5) TMI 1080

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....r, the Department provisionally assessed those machines at a higher value of Rs. 50,75,000/- involving higher duties of Rs. 12,12,665/-. The assessed amount was paid by the appellant for getting the machines released. The said assessment was confirmed vide order dated 05.05.2011. However, in an appeal before this Tribunal against the said order that the order of Commissioner (Appeals) was set aside vide order dated 29.07.2006. Pursuant to that order, the appellant filed a refund claim for Rs. 8,41,826/- on 24.10.2016. The said claim was proposed to be credited to Consumer Welfare Fund established under Section 12 of Central Excise Act alleging that the appellant had unjust enrichment. The said proposal was initially confirmed vide Order-in-....

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....en realized from the buyer. Once the incidence has been passed on to the buyer, no case of refund at all arises. Since the refund was sanctioned, it was to be appropriated back to the Consumer Welfare Fund in accordance with Section 12 of the Customs Act. The same has rightly been ordered to be so appropriated. There is no infirmity in the order. Appeal is, accordingly, prayed to be dismissed. 6. After hearing the parties and perusing the appeal papers, it appears as an admitted fact that the appellant purchased five second hand printing machines, out of which, four machines could have been sold. The invoices in this respect clarifies that the sale has been made on the payment of VAT. Another fact as is apparent from the invoices is that t....

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....er to the buyers that the refund of the impugned amount could be transferred to the Consumer Welfare Fund. 7. Coming to the order under challenge, we observe that the Commissioner (Appeals) observed that the excess duty paid by the appellant/ importer was not shown in the balance-sheet of Financial Year 2010-11, as "outstanding /advance/ deposits/ receivable", it means that the said amount has been treated as expenditure. Since this expenditure has been taken to the profit and loss account, it means that appellants have adjusted the amount in their income while arriving at the net profits, thus, showing that the incidence of duty has been passed on. But these observations are nothing more than the outcome of presumption of Commissioner (Ap....

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....t there was an auditors certificate certifying for incidence to not to have been passed to the customers and when the sale price is same, which was mentioned in the price lists post levy of duty, the conclusion is that the assessee has not passed on the burden of the customs duty to its customers. The facts of the present case are identical to the facts as above. In the present case, rather, the sale price is lesser than the cost price (inclusive of duty). In the given circumstances, question of the appellant to have been enriched unjustly does not at all arise. This Tribunal also in the case of Business Overseas corporation vs. CC (Import & General) reported in 2014 (9) LCX 0189 has held that goods sold at loss during relevant time are not....