ORDER
Jyoti Balasundaram, Vice President
1. After hearing both sides on the application for stay of operation of the order of the Commissioner (Appeals) who has allowed the appeal of the Revenue against the order of the Asst. Commissioner who sanctioned refund of Rs. 11,95,219/- to the respondents therein, we find that it is possible to dispose of the appeal at this stage itself and hence after granting stay, we proceed to do so with the consent of both sides.
2. The importers had cleared the goods namely colour photographic film rolls and claimed refund on the ground that the actual unit price agreed upon by the suppliers as US $ 2.96 per linear foot instead of US$ 3.9107 per linear foot as shown in the invoice. The initial refund claim was rejected; the matter went upto the Commissioner (Appeals); the case was remanded to the lower authorities to decide the matter afresh. During denovo consideration, the Asst. Commissioner, on the basis of gate pass -cum – sale invoices showing that the sale price was constant for the goods in question as well as subsequent similar goods, and certificate issued by Chartered Accountant, held that the burden of excess duty paid was not passed on to the consumer, but was borne by the importer himself and hence the refund claim does not fall under the purview of unjust enrichment.
3. The Revenue came up against the order of the Assistant Commissioner sanctioning refund claim. The Commissioner (Appeals) has accepted the contention of the Revenue, holding that the reliance placed on the certificate issued by the C.A. that the amount of loan and advances in the balance sheet includes amount receivable from the customs authorities is not enough to hold that the incidence of duty was not passed on by the importers to their customers.
4. We find that the Commissioner (Appeals) has not examined the issue in totality and satisfied himself with reference to documentary evidence as to whether the duty burden was passed on the customers. We, therefore, set aside the impugned order and allow the appeal by remanding the matter to the Commissioner (Appeals) for fresh decision on the issue of bar of unjust enrichment after examining all relevant documentary evidence produced by the importer and to pass fresh order after hearing them afresh.
5. The appeal, thus allowed by way of remand.
(Dictated in Court)