M/S. Alfa Textiles vs Commissioner Of Customs, Jnch, Nhava ...
- CitationAPPEAL NO. C/1207/06
Ratio decidendi
The rule this decision rests on
Where an assessee claims refund of customs duty paid under a valuation assessment and the Revenue resists on the ground of unjust enrichment, the assessee's showing of the refund amount as a receivable under loans and advances in its balance sheet is prima facie sufficient evidence that the incidence of duty has not been passed on to another person. An appeal lies against an order of the Commissioner (Appeals) that sets aside the original order and remands the matter for fresh adjudication only where the appellant has been aggrieved; where the appellant has been given liberty to place evidence of non-passing-on before the original adjudicating authority, the appellant should present that evidence to the original authority rather than pursue the appeal before the Tribunal, and the appeal is disposed of by remand on those terms.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 87/2004 (JNCH) dtd. 5/8/2004 passed by the Commissioner of Customs (Appeals), Mumbai-II]
For approval and signature:
Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)
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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen of the Order?
4. Whether Order is to be circulated to the Departmental: Yes authorities? =======================================================
M/s. Alfa Textiles : Appellants
VS
Commissioner of Customs, JNCH, Nhava Sheva. : Respondent
Appearance
Shri K.D. Chugh, Proprietor/Karta for the Appellants Shri D.K. Sinha, Asstt. Commissioner (A.R.) for the Respondent
CORAM:
Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 14/9/2015 Date of decision /2015
ORDER NO.
Per : Ramesh Nair
This appeal is directed against Order-in-Appeal No. 87/2004 (JNCH) dtd. 5/8/2004 passed by the Commissioner of Customs (Appeals), Mumbai-II, Ld. Commissioner (Appeals) set aside the order in original and remanded the matter to the original adjudicating authority.
2. The issue involved is whether the refund claimed by the appellant arising out of finalization of assessment in valuation matter is hit by unjust enrichment or otherwise.
3. Shri K.D. Chugh, Proprietor/Karta for the appellant firm submits that amount for which the refund claim was made, have been shown under the Loans and Advances as receivable from customs. He submitted the balance sheet for the year 2006-07 and 2014-15 wherein amount of refund is reflected. He submits that if the amount was shown in the balance sheet as receivable that is sufficient proof i.e. incidence of duty was not passed on. He submits that on this accounting position, the contention of Revenue that Cenvat credit was availed, also does not sustain for the reason that amount for Cenvat credit is availed cannot be booked as receivable in the balance sheet.
4. Shri D.K. Sinha, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that appellant should not be aggrieved by the impugned order for the reason that original order was set aside and matter was remanded to the original adjudicating authority. Now appellant has liberty to satisfy the original authority regarding the aspect of unjust enrichment, therefore appeal is not maintainable.
5. We have carefully considered the submissions made by both sides.
6. We find that only issue involved is whether the incidence of duty in respect of which refund was sought for has been passed on to any other person or otherwise. We prima facie find that as per balance sheet submitted by the appellant wherein amount of duty was shown as receivable, it is sufficient evidence to establish; incidence of duty has not been passed on. However this fact appears to have not been considered by the lower authorities. Moreover, we agree with the Ld. A.R. that Ld. Commissioner (Appeals) has set aside the original order and remanded matter to the original authority only to verify the aspect of unjust enrichment. The appellant has liberty to show the evidence such as balance sheet before the adjudicating authority to satisfy that incidence of custom duty for which refund was applied has not been passed on. Therefore, in our view the appellant instead of pursuing the appeal before this Tribunal should have submitted evidence before the original authority. In view of our above discussions, we remand the matter to the original adjudicating authority to decide a fresh refund claim of the appellant only after satisfying that amount for which refund is sought for has been shown in the balance sheet as receivable. If it is found correct it is to be taken as sufficient evidence that the incidence of duty has not been passed on and the appellants refund claim shall be allowed. The appeal is disposed of by way of remand to the Adjudicating Authority in the above terms.
(Order pronounced in court on_______________)
P.K. Jain Member (Technical) Ramesh Nair Member (Judicial)
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4 C/1207/06
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