Commissioner of Customs vs Apple India Pvt. Ltd.

N. Kumar, J.—The Revenue has preferred this appeal challenging the order dated 31-3-2010 2014 (301) E.L.T. 675 (Tri.-Bang.)] passed by the Appellate Tribunal confirming the order passed by the Tribunal that the assessee has satisfied the legal requirements to enable him to claim refund under Section 27 of the Customs Act, 1962 (hereinafter referred to as ''the Act''). The assessee - M/s. Apple India Pvt. Ltd. filed refund in terms of the Notification No. 102/2007-Cus., dated 14-9-2007 as amended by Notification No. 193/2008-Cus., dated 1-8-2008 for an amount totally to Rs. 5,22,27,424/- being the 4% on the Special Additional Duty (ADC/SAD), paid while importing the goods. The adjudicating authority after considering the said claim of refund rejected the same on the grounds that the assessee has failed to prove that they had not passed on the incidence of duty to the customers or any other person and also on the ground that they have not furnished required documents in relation to refund claims. The assessee preferred an appeal before the Commissioner of Customs (Appeals). The Commissioner of the Customs (Appeals) after considering the entire material on record, held that the assessee is entitled for refund and accordingly, allowed the appeal.

Aggrieved by the same, the Revenue preferred an appeal to the CESTAT. The Tribunal held that audit report shows that the burden of duty has not been passed on either directly or indirectly to the domestic customers. While coming to the conclusion, the auditors have taken into account how the price of traded goods have been arrived at and therefore, the Tribunal was of the view that no interference is called for and dismissed the appeal.

The Revenue assailing the impugned order contended that the assessee has not produced all certificates in terms of the notification as per Annexure D. Similarly, they have failed to establish that they have not passed on the duty to the domestic customers. In the circumstances, both the Appellate Authorities were not justified in passing the impugned orders.

Per contra, learned Counsel for the assessee supported the impugned order.

In Para No. 5 of the Tribunal''s order, it is observed that ''there is no dispute that all the conditions in terms of the Notification have been fulfilled excepting the unjust enrichment aspect which has been as submitted by the learned Counsel, prescribed by the Board''. Therefore, it is not open to the learned Counsel for the Revenue to contend that before this Court though the terms of the notification has not been complied with but the same has been considered and the point that was argued before the tribunal is only to prove unjust enrichment aspect. Section 28D of the Act states that there arise a presumption that the incidence of duty has been passed on to the customers. It also states that every person who has paid the duty on any goods under this 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. Therefore, it is clear that it is rebuttable presumption. To rebut such presumption, the assessee has produced auditor report required to claim the refund of special additional duty. The auditor has unequivocally stated in his report that the burden has not been passed on directly or indirectly and in coming to such conclusion, they have taken into account how the price of the traded goods has been arrived for this purpose. Therefore, such presumption stands rebutted. In that view of the matter, we find no merit in the appeal. No substantial question of law would arise in this appeal and hence, the appeal is dismissed.