2005 (3) TMI 333

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....Diesel Generating Sets (D.G. Sets for short) under the 100% E.O.U. scheme in 1986. In 1994, the goods were de-bonded and cleared to a buyer, M/s. Pomani Metals and Alloys Ltd., Kupwada, Sangli, Maharashtra. Each set was sold for Rs. 3,25,000/-. In respect of each set, customs duty of Rs. 2,25,343/- has been paid. The appellants realised that while paying duty, they have adopted higher rate of duty, i.e. 65% basic duty and 20% additional duty instead of adopting 25% basic duty and 10% additional duty. Therefore, they filed a refund claim for refund of excess payment of customs duty to the tune of Rs. 1,39,140/-. There is no dispute regarding the payment of excise duty. The lower authority has rejected the refund claim of the party on the gro....

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....d, the presumption is that the duty has been passed on to the buyers. There is absolutely no basis for the Chartered Accountant to give a certificate that the duty burden has not been passed on to the buyers. Hence, there is unjust enrichment if refund is given. He pleaded that the impugned order may be upheld. 7. We have gone through the rival contentions. This is a case where de-bonded goods have sold. There is nothing wrong in the presumption of the Revenue that the duty burden is included in the sales price. But the error committed by the Revenue is in presuming that duty collected in excess of what is payable had been passed on to the buyers. Whenever there is a composite price inclusive of all duties, the meaning is that the price ....

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....ent of duty. In view of the favourable order, the appellants filed a refund claim for the consequential refund amount. But the claim was rejected on the ground of unjust enrichment. The Revenue relied on the work contract which indicates that the rates are inclusive of all taxes. The Tribunal interpreted the terms 'inclusive of all duties' and held that the provision that "the rates are inclusive of all duties" would not lead to the necessary presumptions or conclusion that excess duty should be held to have been covered or provided for. The price here was a lump sum amount and the usual condition that the rates are inclusive of all duties and taxes is only with a view to avoid any possibility of the supplier raising any demand at a later s....