ORDER
T.K. Jayaraman, Member (T)
1. This is an appeal filed by the Revenue against the Order-in-Appeal No. 153/2003-Cus., dated 11-4-2003 passed by the Commissioner of Customs (Appeals), Bangalore.
2. The brief facts of the case are as follows:
The Respondents imported Black & White Thermal Printers for medical use. Initially the importer/respondents did not claim the benefit of any Notification. Hence the goods were cleared on payment of Customs duty. However it was realised later that the goods are entitled for the benefit of Notification No. 65/88. In these circumstances, the respondents filed a refund claim before the Original Authority for a sum of Rs. 1,81,334/-. The Original authority held that the goods are not entitled for the benefit of exemption notification as the same cannot be considered as accessory of the ultra sound scanner in terms of the said notification. He has also held that the claim is hit by the bar of unjust enrichment. The order of the Original authority appears to have been upheld by the Commissioner (Appeals). However, on the respondent’s appeal, the CEGAT in its Final Order dated 31-7-2000 remanded the matter to the Commissioner (Appeals). The Commissioner (Appeals) passed the impugned order. In the impugned order, he has set aside the Order in Original and allowed the respondent’s appeal. The Revenue has filed this appeal against the impugned order on the ground that the claim is hit by bar of unjust enrichment.
3. Shri K. Samba Reddy, learned JDR appeared for the Revenue and none appeared for the Respondents.
4. The learned JDR submitted that the price at which the respondents collected from the buyer includes the duty. Hence it is hit by the bar of unjust enrichment. Moreover even on merits, the imported equipment cannot be considered as accessory to the ultra sound scanner and therefore the respondents are not entitled for the benefit of the exemption notification. Further he said that since the assessment has not been challenged, in view of Priya Blue case 2004 (172) E.L.T. 145 (S.C.) decided by the Apex Court, no refund can be granted. In that case, no refund could be claimed and Section 27 of the Customs Act would be otiose.
5. We have gone through the records of the case carefully. The Commissioner (Appeals) has gone through the technical literature and given a finding that the imported equipment is specifically designed for medical diagnostic equipment such as ultra sound scanner systems and provides detailed black & white images in four seconds. He held that the equipment can be treated as an accessory to ultra sound scanner systems and would be entitled for customs duty exemption. In our view the finding of the Commissioner (Appeals) on the entitlement of notification is correct. As regards the unjust enrichment, the Commissioner (Appeals) has taken that the supplies were made under specific purchase order to the Government of Uttar Pradesh, and the equipment was delivered at this specific price. Hence he has given a finding that the incidence of duty has not been passed on. This view of the Commissioner (Appeals) is correct. No doubt, the price at which the equipment was supplied to the Uttar Pradesh Government includes the duty payable. In the present case, the duty payable is NIL as the goods are exempted from the Customs duty. When the duty payable is NIL and the goods are sold at a specified price, there is absolutely no question of passing of the duty burden to the buyer. The ratio of Priya Blue case cannot be applied to a case where the assessee fails to claim the benefit of an exemption notification. The Order-in-Appeal is legal and proper. The Revenue’s appeal has no merit. Hence the same is dismissed.
(Operative portion of the order has been pronounced in the open Court)