M/S. Deepak Vs. Commissioner of Customs and St Kanpur

M/S. Deepak vs Commissioner of Customs and St Kanpur

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Principal Bench New Delhi Decided Jan 28, 2014

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Citation: sooperkanoon.com/1150083
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Principal Bench New Delhi
Judge: The Honourable Ms. Justice Archana Wadhwa, Member (Judicial)
Decided On: Jan 28, 2014
Case Number: Customs Appeal No. 3757 of 2012 Cu[SM] [Arising Out of Order-In-Appeal No. 282/Cus/Appl/KNP of 2012 dated 14.9.2012 passed by Commissioner of Customs, Kanpur]
Subject: Service Tax

Case Summary

AI-generated summary - not the official court judgment text.

Service Tax

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

M/S. Deepak

Respondent

Commissioner of Customs and St Kanpur

Excerpt

.....24/06 dated 7.3.2006. though the appellant have produced only photocopies of the said invoice and the original do not stand produced, the contention of the appellant is that the original have been lost by them. 4. even without going into these facts, i find appellant have filed chartered accountant certificates certifying that extra duty paid by the appellants does not stand recovered from their buyers. apart from that, the said extra duty stand reflected in the balance sheet as loan and advances and that the same is recoverable from the revenue. 5. the tribunal in number of cases have held that chartered accountant certificate certifying non-passing of duty to the buyers has to be accepted. one such reference can be made to decision of the tribunal in the case of corning s a vs. cce, new delhi [2005 (192) elt 355 (tri-del)]. it is also found that honble madras high court in the case of cce, coimbatore vs. flow tech power [2006 (202) elt 404 (mad)] has held that chartered accountants certificate and profit and loss account confirming that duty paid on the goods has been absorbed by the assessee has to be given due evidentiary value. 6. by applying the ratio of above decisions to the facts of the present case, i find that admittedly the enhancement of value at the time of import of the goods by the customs authorities, stand set aside by the tribunal. on success of their appeal, the appellant is entitled to the consequential relief on the same, otherwise the entire litigation done by the appellant would loose importance. the said consequence of allowing the appeal is that whatever higher duty the appellant has paid at the time of clearance of goods, should be refunded to them. where the assessee has produced chartered accountant certificate, the invoice showing the stamp of non-passing of duty to the customers and profit and loss account showing the said duty is recoverable from the revenue, the denial of same on the hyper technical point of non-production of.....

Full Judgment

Archana Wadhwa, J.

1. As per facts on record, the appellant imported certain lighting fixtures and filed bill of entry. Dispute by the Customs authorities is as regards the valuation and the same was subsequently enhanced. The appellant cleared the goods on payment of higher duty amount of Rs.3,12,418/-

2. Subsequently the order of enhancement of value was challenged by the appellant before the higher authorities and the Tribunal vide its order No. C/241-242/2011 dated 3.6.2011 allowed the appeal with consequential relief. The appellant accordingly filed refund claim of excess duty amount of Rs.3,12,418/- which stand rejected by the lower authorities on the ground of unjust enrichment.

3. I find that the appellants while issuing invoices to their customs stamped the same - extra customs duty deposited vide challan dated 10.3.06 not charged from the buyers on goods imported vide Bill of Entry dated 24/06 dated 7.3.2006. Though the appellant have produced only photocopies of the said invoice and the original do not stand produced, the contention of the appellant is that the original have been lost by them.

4. Even without going into these facts, I find appellant have filed Chartered Accountant certificates certifying that extra duty paid by the appellants does not stand recovered from their buyers. Apart from that, the said extra duty stand reflected in the balance sheet as loan and advances and that the same is recoverable from the Revenue.

5. The Tribunal in number of cases have held that Chartered Accountant certificate certifying non-passing of duty to the buyers has to be accepted. One such reference can be made to decision of the Tribunal in the case of Corning S A vs. CCE, New Delhi [2005 (192) ELT 355 (Tri-Del)]. It is also found that Honble Madras High Court in the case of CCE, Coimbatore vs. Flow Tech Power [2006 (202) ELT 404 (Mad)] has held that chartered accountants certificate and profit and loss account confirming that duty paid on the goods has been absorbed by the assessee has to be given due evidentiary value.

6. By applying the ratio of above decisions to the facts of the present case, I find that admittedly the enhancement of value at the time of import of the goods by the Customs authorities, stand set aside by the Tribunal. On success of their appeal, the appellant is entitled to the consequential relief on the same, otherwise the entire litigation done by the appellant would loose importance. The said consequence of allowing the appeal is that whatever higher duty the appellant has paid at the time of clearance of goods, should be refunded to them. Where the assessee has produced chartered accountant certificate, the invoice showing the stamp of non-passing of duty to the customers and profit and loss account showing the said duty is recoverable from the Revenue, the denial of same on the hyper technical point of non-production of original invoice is neither justified nor fair. Accordingly, I set aside the impugned order and allow the appeal with consequential relief to the appellant.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Prin... Same Parties M/S. Deepak vs Commissioner of Customs and St Kanpur Same Subject Service Tax Same Judge The Honourable Ms. Justice Archana Wadhwa, Member (Judicial)