ORDER
V.K. Jain, Member (T)
1. This appeal has been filed by M/s. Hindalco Industries Ltd. against the Order-in-Appeal No. KOL/CIS/57/CKP/2003 dated 19.8.2003 passed by the Commissioner of Customs (Appeals), Kolkata.
2. The issue in the present appeal relates to admissibility of refund on account of wrong computation of assessable value in the bill of entry. The brief facts of the case are that the appellant company reportedly due to inadvertence, furnished wrong particulars of freight and insurance charges in the bill of entry relating to assessment of goods, viz., “CNC Wirecut Electric Discharge Machine along with compulsory accessories”. It was stated that instead of correct amount of Rs. 80,916/- and Rs. 2,106/- towards freight and insurance charges respectively, a corresponding amount of Rs. 8,08,941/- and Rs. 21,054/- had been shown by mistake. The appellant company submitted that due to such wrong computation of freight and insurance charges in the assessment, they had paid duty in excess, to the tune of Rs. 3,83,257/- which was refundable to them. However, the refund claim of the appellant company was rejected by the lower authority on the ground that the assessment in the relevant company was rejected by the lower authority on the ground that the assessment in the relevant bill of entry had not been appealed against and accordingly, the refund claim of the appellant would not be admissible. Further it was held that the refund claim of the appellants would not be admissible. Further, it was held that the refund claim was otherwise barred by the principle of unjust enrichment. Being aggrieved by the aggrieved by the aforesaid order, the appellant company filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) confirmed the Order of the lower authority and rejected the appeal filed by the appellant company.
3. I have heard Shri B.N.Pal, learned Advocate for the appellant company. Shri Pal submits that there was a mistake on their part of giving freight and insurance amount wrongly on the bill of entry in question. The said bill of entry may be amended as per Section 149 of the Customs Act, 1962. He relies upon this Tribunal’s decision in the case of MECON Ltd. v. CC., Calcutta reported in 2003 (55) RLT 219 (CEGAT-KOL) in support of the fact that the appellant company need no file a separate appeal against the Assessment order when the appellant company claimed refund for erroneous payment made on account of wrong computation of freight and insurance charges at the time of assessment. Learned Advocate further submits that the machines imported were meant for the appellant’s factory and would be captively used in their factory premises. If the goods are captively consumed, the provisions of Section 27 of the Customs Act would not apply for the purpose of refund of duty, as not incidence of duty had been passed on to any other person and thus the doctrine of unjust enrichment would not apply in the instant case. He also submits that the Commissioner (Appeals) observation that less charges towards freight and insurance were not signed/authenticated by the Issuing Authority/proper Customs Officer, it not correct, as the appellant company had submitted these documents with the appeal papers which were signed and authenticated by the Issuing Authority.
4. Countering the arguments, Shri N.K. Mishra, learned J.D.R. for the Revenue points out to para 3 of the Commissioner (Appeals) Order wherein the Commissioner has observed that assuming that the documents were genuine, the refund claim of the appellant company shall not be admissible. Shri Mishra, learned JDR also submits that since the Commissioner (Appeals) has not based his findings on these documents, question of putting reliance on these documents does not rise. he also submits that the refund claim contrary to the assessment made in the bill of entry would not survive for consideration unless the bill of entry was set aside in appeal. The Assessment Order in the bill of entry dated 8.3.2002 had attained the finality and the same was not appealed against. He further places reliance upon the Larger Bench decision in the case of FAXTEL System (India) Pvt. Ltd. v. Commissioner of Customs, Cochin reported in 2004 (169) ELT 265 (Tri-LB). It has been held in the sid judgment that application filed by the appellant for refund under Section 27 was only to be rejected by applying the ratio of the decision of the Apex Court in the case of Flock (India) Pvt. Ltd. reported in 2000 (120) ELT 285 (SC). Since the above decision is a Larger Bench decision based on the Hon’ble Supreme Court judgment, the above will get the precedence upon this Bench decision in the case of MECON Ltd. v. CC., Calcutta reported in 2003 (55) RLT 219 (CEGAT-KOL). Learned JDR also draws may attention to MF (DR) Circular No. 24/2004-Cus, dated 18.3.2004 where based on the Hon’ble Supreme Court ratio in the case of Commissioner of Central Excise v. Flock India reported in 2000 (120) ELT 285 (SC), it had been held that a refund claim is not maintainable, when the assessee did not challenge the Assessment Order which became final. Shri Mishra, learned JDR refers to the findings of the Commissioner (Appeals) contained in paras 4 and 5 of the impugned Order, wherein it has been held that doctrine of unjust enrichment applies to refund of duty paid on capital goods which are captively consumed in the manufacture of final product. The ratio of the Hon’ble Supreme court’s judgment in the case of M/s. Solar Pesticides Pvt. Ltd. reported in 2000 (116) ELT 401 (SC), is fully applicable in the present case. Learned JDR also relies on the following case laws :
(A) Oil & Natural Gas Commission v. CCE., Kanpur reported in 2003 (156) ELT 794 (Tri-Del.)
(B) SRF Ltd. v. CC., Chennai reported in 2002 (144) ELT 563
Learned JDR also refers to Section 28(D), which lays down as under :
“Section 28D. Presumption that incidence of duty has been passed on to the buyer. – Every person who has paid the duty on any goods under the Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods.”
Relying upon the above section Shri Mishra, learned JDR submits that this Section puts onus on the appellant company herein to rebut the presumption that the incidence of duty had been passed on to the buyer.
5. After hearing both sides and the submissions made by them during the hearing, I find that the appellant have failed to prove that the duty incidence was not passed on the buyer. I also find that since the appellants did not file any appeal against the Assessment Order pursuant to which the duty was paid by them and neither the duty was aid under protest, the refund claim is not legally admissible. This also finds support of the Hon’ble Supreme Court decision in the case of Motilal Dulichand v. Commissioner of Customs, New Delhi, were Hon’ble Mr. Justice S.N. Variava and Hon’ble Mr. Justice H.K. Sema Dismissed the Civil Appeal No. D-4945/2003 filed by the above party against CEGAT’s Order No. 590/2002A dated 22.11.02. In the absence of any foolproof documentary evidence and the presumption being that the appellant company had passed the duty incidence on the buyer, the refund claim would be barred by principle of unjust enrichment.
In view of the above, I uphold the Order of the Commissioner (Appeals) and reject the appeal filed by the appellant company.