Elechmen Vs. Commissioner of Custom

Elechmen vs Commissioner of Custom

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Tamil Nadu Decided Jul 05, 1999

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Citation: sooperkanoon.com/16155
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Tamil Nadu
Judge: S Peeran, A T V.K.
Decided On: Jul 05, 1999
Subject: MRTP

Case Summary

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

MRTP

Key legal issue: MRTP

Parties & Advocates

Appellant / Petitioner

Elechmen

Respondent

Commissioner of Custom

Legal References

Reported In: (1999)(66)ECC420

Excerpt

.....and cleared goods on payment of duty treating the goods as attracting sub-heading no. 3926.90. thereafter, appellant filed refund claim station that the goods attract ch.h.no. 85.47 involving lower rate of duty and that higher duty had been paid. the ac rejected the claim on the ground that 85.47 was not applicable. the collector (appeals) confirmed the order on merits as also taking note of the appellants submission that the burden of customs duty has been passed on the buyer. these orders are challenged. 2. we find it unnecessary to go into the dispute relating to classification since, admittedly, the burden of customs and other duties had been passed to the buyer, and hence there can be no refund.6. the issue in the present case being identical and the cce(a) has also expressed his view that the refund claim is hit by unjust enrichment clause, we are of the considered opinion that the ratio of the above judgment would apply in toto to the facts of the present case. the appellants having not produced any evidence to show that the burden of duty has not been passed on to the customs, therefore, their oral plea that provisions of section 27 does not come into play cannot be accepted. following, therefore, the ratio of the above judgment, the appeals are rejected.

Full Judgment

1. In all these three appeals a common question of law and facts are involved and hence they are taken up together for disposal as per law.

Appellants had imported "Heat Shrinkable Sleeves" (SLV) which are said to be used as insulating material for telecom cable classifiable under sub-heading 3926.90 of the Customs Tariff Act.- They paid duty and cleared the goods. However, they filed refund applications seeking re-classification of the goods under heading 8547.90 of the Customs Tariff Act. The Collector (Appeals), by three separate impugned orders rejected the pleas of the appellants on merits and also held that in case refund is granted it will be hit by Section 27 of the Customs Act, 1962 as duty has been passed on to the customers. Therefore, both on merits as well as on unjust enrichment the Commissioner (Appeals) has rejected their appeals.

2. The Appellants are not present. Their Counsel Shri S. Raghu, has filed a written brief in this case and has requested that the case may be decided on merits.

3. It is contended that the item is classifiable only under heading 8547.90 as per its end-use and supplied to the DOT for insulation of the underground cables. They also referred to Rule 3(a) of the Interpretative Rules for the purpose of seeking classification under Chapter 85. They also stated that there is divergent Customs practice in respect of classification of this item. They also stated that the goods were not sold as such, but alongwith other materials in a kit "Telecom Kit", only consolidated price is collected and hence it cannot be said that the burden of tax was passed on to the customers and hence refund is not hit by the unjust enrichment clause effective from 20.9.91. In fairness the learned Counsel has made available a copy of the final order of the Tribunal bearing Order No. 3195/97 dated 1.12.97 rejecting their appeal on the same issue solely on the ground that refund is hit by unjust enrichment clause and that it is not necessary for the Bench to go into the dispute on classification.

4. We have heard Smt. Aruna N. Gupta, learned DR who submits in respect of one of the appeals referred to by the appellants themselves the Tribunal on the same issue rejected their appeal on ground of unjust enrichment. She submits that in all these three appeals the CCE(A) has gone into great details and gave a finding both on merits as well as on ground of unjust enrichment and has held that burden of duty has been passed on to the customers and in view of this, their prayer for refund is not sustainable. She submits that the Tribunal had also rejected their appeal on this ground. Therefore, their appeals are required to be rejected.

5. On consideration of the submissions made, we notice that similar matter of the appellants on the same of reclassification of Heat Shrinking Sleeves came up for consideration before the Tribunal and the Tribunal vide their Final Order No. 3195/97 dated 1.12.97 comprising of the Bench of Justice UL Bhat and Shri K. Sankararaman, M(T) has held as follows: The appellants imported Heat Shrinking Sleeves (part of cable sealing system) and paid duty and cleared goods on payment of duty treating the goods as attracting sub-heading No. 3926.90.

Thereafter, appellant filed refund claim station that the goods attract Ch.H.No. 85.47 involving lower rate of duty and that higher duty had been paid. The AC rejected the claim on the ground that 85.47 was not applicable. The Collector (Appeals) confirmed the order on merits as also taking note of the appellants submission that the burden of customs duty has been passed on the buyer. These orders are challenged.

2. We find it unnecessary to go into the dispute relating to classification since, admittedly, the burden of customs and other duties had been passed to the buyer, and hence there can be no refund.

6. The issue in the present case being identical and the CCE(A) has also expressed his view that the refund claim is hit by unjust enrichment clause, we are of the considered opinion that the ratio of the above judgment would apply in toto to the facts of the present case. The appellants having not produced any evidence to show that the burden of duty has not been passed on to the customs, therefore, their oral plea that provisions of Section 27 does not come into play cannot be accepted. Following, therefore, the ratio of the above judgment, the appeals are rejected.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Tami... Same Parties Elechmen vs Commissioner of Custom Same Subject MRTP Same Judge S Peeran, A T V.K.