ORDER
M.V. Ravindran, Member (J)
1. This appeal is directed against the order-in-appeal dt. 26.7.2005 which upheld the order-in-original vide which refund claim filed by the appellant was rejected.
2. None appeared on behalf of the appellant despite notice. The appellant has sent a letter dt. 29.3.2007 addressed to the Registry stating that they had made a prayer for transfer of this appeal to Delhi Bench as the Managing Director was a Senior Citizen and they would be in a better position to prosecute the appeal at Delhi Bench. It also states that a transfer application made earlier was rejected and still the appellant feels that the same should be reviewed and the matter may be transferred to Delhi as prayed in earlier applications.
3. The Ld. DR submits that once the transfer application has already been dismissed, the question of making another application for transfer of the case Delhi Bench does not arise. As regards the merits of the case, the Ld. DR submits that the issue involved in the case is regarding the refund of the amount duty paid in excess by the appellant on the capital goods imported by him. It is his submission that the appellant has not produced any evidence regarding the non passing of the incidence of duty to their customers.
4. It is seen from the records that the appellants application for transfer of the case to Delhi Bench was first rejected by this Tribunal vide its order No. M/464/WZB/2006/SMB/C-IV dt. 15.11.06 and again vide order No. M/79/C-IV/SMB/2007 dt. 12.3.2007. Since two applications of the appellant for transfer of the appeal Delhi Bench has been rejected, there is no reason for the appellant to file another application for transferring the appeal to Delhi Bench. Further the said application made by the appellant is not in proper format. Hence the purported application is dismissed and the appeal is taken up for disposal in the absence of representation from the appellant since the appeal is of 2005.
5 Considered the submissions made by the Ld. DR and perused the records. The issue involved in this case is regarding the refund of the payment of Customs, CVD contravening duty on the capital goods imported by them. The appellant imported Industrial Sewing Machines, Cloth Cutting Machines, Steam Iron with table and spares filed Bill of Entry claiming exemption under Notification No. 51/88-Cus dt. 1.11.88. The Bill of Entry was assessed at full rate of duty without extending the benefit of the said notification. Appellant paid the duty as assessed and cleared the goods and filed a refund application on the ground that they are eligible for lesser duty by virtue of notification No. 51/88-Cus. The said refund application was dismissed by the adjudicating authority for non-production of the evidence that the burden of duty, which has been claimed as refund, has not been passed on to a third party. The Ld. Commissioner (Appeal) has upheld the order-in-original on the following findings:
The appellants were called for Personal hearing on 19.7.2005, but failed to attend P.H. however the appellant vide their letter No. SEHPL/7/2005 dated 07.07.2005, submitted that the appeal may be decided on merits. They also reiterated the points mentioned in the memorandum of appeal. The matter is taken for decision based on documents on record.
I have carefully gone through the records of the case. In this case refund claim relates to duty paid on capital goods which have being used by the appellants himself. The principle of unjust enrichment will therefore apply if the burden of tax has been indirectly passed on to the buyer of the finished product. In the case of capital goods and law material, the goods are not sold as such, however it is a fact that no prudent manufacturer would bear himself the cost of capital goods including tax paid thereon and it is indirectly paused by including in the price of end product. Infact, the price of and product is determined by including the cost and taxes on various inputs including the capital goods.
I find that appellant has neither submitted bond for the 50% of refund claim and Bank Guarantee for the balance amount nor produced any documentary evidence to substantiate their claim that the excess duty burden has not been passed on to the consumer.
In the light of the Hon’ble Supreme Court judgment in the matter of M/s. Solar Pesticides Pvt. Ltd. the party is required to submit documentary evidence to satisfy the requirements of the principle of unjust enrichment with regard to Section 27 read with Section 28E and 28D of Customs Act, 1962 to prove that they have not passed on the duty burden directly or indirectly to others.
In view of the above facts and findings, I uphold the order of lower authority and reject the appeal filed by the appellants.
6. It is seen from the above reproduced findings that the appellant has not produced any evidence regarding the non passing of the incidence of the duty which he seeks to claim as refund. It is very clear that the provisions of Section 27 read with Section 28E and 28D of the Customs Act, mandate that the appellant should prove that they have not passed on burden of duty either directly or indirectly to the customers. In the absence of any evidence in the appeal filed by the appellant, I do not find any reason to interfere in the findings of the Ld. Commissioner (Appeals).
7. Accordingly, the facts and circumstances of the case, the appeal is dismissed.
(Dictated in court)
