TaxTMI 
TaxTMI 
2021 (3) TMI 214
X X X X Extracts X X X X
X X X X Extracts X X X X
.... overseas supplier had charged higher price to them in the import invoice. The Bills of Entry were filed based on such erroneous import invoices with the higher price and customs duty accordingly was paid at such higher value incorrectly shown in the import invoice. Upon noticing, the Appellant brought this error to the notice of BMW AG which issued a letter dated 18.06.2009 acknowledging the error and issued credit notes and corrected invoices to the appellant. On 24.07.2009, the Appellant requested for re-assessment of the Bills of Entry based on credit notes and corrected invoices, under Section 149 of the Customs Act, 1962. This re-assessment request was initially rejected vide OIO dated 23.11.2009; however, upon appeal against it, the Commissioner (Appeals) vide his order dated 23.02.2010 was pleased to set aside the OIO dated 23.11.2009 and directed to verify authenticity of all the documents and pass a fresh order. This OIA dated 23.02.2010 has been accepted by the Revenue, as they have not filed any appeal against this order. 3. Pursuant to the above remand order, on 16.06.2010, the Assistant Commissioner of Customs (Group 5B & C) after verifying all the documents and find....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ue. 4.4 Ld. counsel further submitted that the Order-in-Original dated 21.07.2010 at Page 317 of the appeal, records the documents submitted by the Appellant viz. self-declaration of duty not having been passed, working sheet, books of account / ledger, CA certificate stating duty not passed on and accounted as receivable and costing data. None of these documents have been found to be untrue in the impugned order. 4.5 Ld. counsel refers to Para 14 of the impugned order wherein it is stated that the appellant should have mentioned about reduction in price in the sale invoices issued. This clearly evidences that the Commissioner (Appeals) has not appreciated the facts of the case. The present case is not that of reduction in price. It is a case where inadvertently the overseas supplier indicated higher price in his invoice raised on the appellant and the same higher price was offered for Customs assessment on which consequently higher customs duty was paid. The Appellant's sale-price to dealer's remained same throughout and hence in fact, it is the Appellant's case that their sale price having remained same before and after the error vis-a-vis their customers / dealers ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d.) 4) Cadbury India Ltd. Vs Union of India - 2015 (315) E.L.T. 488 (Ker.) 5) Infar (India) Ltd. Vs CC New Delhi - 2002 (150) ELT 411 (Tri.-Del.) 6) Union of India Vs Mulder India (P) Ltd. - 2007 (212) ELT 319 (Kar.) 7) Ashis Metal Rolling Mills Vs CCE Ahmedabad - 2014 (305) ELT 510 (Guj.) 5. On behalf of the respondent, Shri S. Balakumar appeared and argued the matter. He adverted to the discussions in para-3 of the impugned order. Though the appellant contends that they have not passed on the customs duty, it is seen from the sales invoices that only the details of the car, price and CST is mentioned. Thus they have adopted cum duty price in issuing the sales invoice. As per Section 28C of Customs Act, 1962, the sales invoices raised by the importer has to contain the element of customs duties separately. Since the customs duty has not been specifically mentioned in the sales invoices, as per Section 28D of Customs Act, 1962, the law presumes that the incidence of duty has been passed on. The original authority while allowing the refund had relied upon Chartered Accountant certificate etc. which are not sufficient evidence for allowing the refund. In the Chartered Accoun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e standard price list. Consequently due to the higher import price mentioned in the invoice, the duty also was paid on the higher amount, whereas the sales price was not changed as the standard selling price is already communicated to the dealers. The error in the import price was noticed during the month end Internal Audit and the same was taken up with the parent company BMW AG in Germany who have accepted the mistake and immediately issued the Credit Notes for the difference between the standard import price list and the amount charged by them. 4. After examination of the records, it is verified from records that the details as given in the Declaration/Declaration of the calculations/summary of the sale invoices are true thereof." 8. The department contends that as per Section 28D of Customs Act, there is a presumption that the incidence of duty has been passed on when the customs duty is paid. Such presumption is a rebuttal presumption. The certificate of the Chartered Accountant would show that he has examined records and verified as to the details of the refund claim made by the appellant. Further, it is also shown that the amount was reflected in the accounts /balance she....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... The Claimant has claimed the refund of Excess Duty Rs. 9,24,35,784/- against 7 Bills of Entry. They claimed the refund under Section 27 of the Custom Act, 1962 and in support of the refund application; the claimant has submitted the following documents: 1. Self Declaration stating that the incidence of excess duty has not been passed on to any other person. 2. Working Sheet for the refund claimed. 3. Books of Accounts / Ledger Account. 4. Certificate from the Chartered Accountant. 5. Costing Data." 9. The findings of the original authority is noticed as under : "The order passed by the Commissioner (Appeals) has been accepted by the Committee of Commissioners on 03.05.2010 vide O/M/A 101/2010 RC-SEA dated 10.06.2010. As per the orders of Commissioner (Appeal) the Group 5B & C reassessed the 7 Bills of Entry after duly verifying all the documents purchase orders, Invoices, credit notes etc., and certified that all the documents including purchase orders, invoices, credit notes etc., have been thoroughly scrutinised and found them to be in order. All the seven Bills of Entry have been finally re-assessed by Asst.Commissioner of Customs (Group 5B & C) on 16.06.2010 m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d the assessee to pay customs duty to the tune of Rs. 94,86,522/-. Assessee paid the whole customs duty 'Under Protest' and got the goods released. Orders of the customs authorities were ultimately reversed by the Tribunal and it was held that the goods imported by the assessee would be classifiable under Sub-Heading 3002.90 and were exempt from payment of customs duty under the aforesaid notification. This order became final. 3. Assessee thereafter filed an application claiming refund of the customs duty paid by it. The authority-in-original rejected the claim on the ground that the assessee had passed on the burden of the customs duty to its customers and refund of the customs duty would amount to unjust enrichment as provided under Sections 27, 28(C) and (D) of the Act. Assessee challenged the order-in-original before the Commissioner of Customs (Appeals). Commissioner of Customs (Appeals) upheld the order-in-original. Assessee thereafter filed appeal before the Tribunal. Initially, there was a difference of opinion between the Member (Technical) and Member (Judicial) regarding the refund of the customs duty. It was held by the Member (Technical) that the incident of duty has ....