TaxTMI 
TaxTMI 
2004 (3) TMI 229
X X X X Extracts X X X X
X X X X Extracts X X X X
....refunds, called for triplicate copy of BE and the books of account to rule out unjust enrichment. The appellants produced the following documents : (a) Sale Bill No. 2/97-98, dated 1-3-98. (b) Sale invoice Bill No. 1/97-98, dated 28-2-98 (c) SIL debit note dated 1-1-98 (d) Customs House Agent, M/s. Swen Agenies Pvt. Ltd. bill receipt. (e) Bill of exchange dated 3-1-98 (f) HDFC draft dated 4-2-98 (g) Bill of Entry along with purchase order, proforma invoices, commercial invoice, packing list, Airway bill and documents arrival notice dated 29-1-98. The Deputy Commissioner held as follows :- "Assessable value declared in the above Bill of Entry is Rs. 2,41,188/- b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e price of Rs. 46/47 per pc. is inclusive of the duty amount of Rs. 35.18/pc. approx, (the invoices do not show the element of duty separately in accordance with the provision of Section 28D of Customs Act, 1962. "Further held that as per the provision of Section 28C of Customs Act, 1962 the sales invoice should indicate the amount of duty which will form part of the sale price at which goods are to be sold; but the above sale invoices do not show the amount of duty. In this view of the matter D.C. held that in terms of Section 28D the duty amount of Rs. 35.18 per pc. shall be deemed to have been passed in full to the above buyers to whom the Electronic Brick Games were solid for Rs. 46/47 per pc. inclusive of the duty amount of Rs....
X X X X Extracts X X X X
X X X X Extracts X X X X
....price of the goods to be US $ 0.60 per piece which approximately works out to Rs. 27 per piece. (d) On the issue of non-mention of the duty element separately it was stated that the law does not permit to recover the refund of duty if the amount of duty element has already been passed to the consumer i.e. it prohibits unjust enrichment. In achieving this objective there are conditions but some of the conditions may be substantive, mandatory and based on considerations of the policy and some others may merely belong to the area of procedure. It would be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purpose they were intended to serve. The Supreme Court decision in Mangalore Chemical....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t on record evidence to prove the case of unjust enrichment burden passed on. The sale price and costing of the goods as submitted by the appellant that has not been questioned by both the authorities below. Therefore non-filing of IT returns and of Balancesheet to the Commissioner (Appeals) are issued not germane and are irrelevant for considering the question of unjust enrichment the sale of imported goods been made by the importer. The cost of goods is a pure question of fact and profit and loss are to be determined consequently to the cost of the goods of import duties, especially on enhanced value would be a important component of costs. (d) Since the presumption raised by Sec. 28D of the Customs Act, 1962 is a rebuttable pres....