Judgment:
1. All these nine appeals of two importers arise from common orders passed by Commissioner (Appeals) vide No.C.Cus 514 & 515/99 dated 12.8.99 after the matter was remanded by the CEGAT by their order No.710/95 dated 27.11.95 with the following observations:- 4. We have considered the submissions made before us. The issue in the above appeals are common relating to the applicability of the doctrine of unjust enrichment against the grant of refund in favour of the respondent. As rightly contended by the learned SDR, section27(2) of the Customs Act, 1962, the doctrine of unjust enrichment would not be applicable only if the duty and interest paid on such duty paid by the respondent or the person concerned had not been passed on to any other person and in the present case, in the absence of any precise finding it would not be possible to hold that the duty and the interest if any paid thereon had not been passed on merely on the basis of the fact that the respondent incurred losses by reason of the difference between the landing cost and the selling price which is less than the landing cost.
Therefore, without expressing any opinion on the merits of the issue we set aside the impugned order and remand the appeals including thecross appeals to the Commissioner (Appeals) for reconsideration of the issue in accordance with law. It would be open to the respondents to adduce such evidence as open to them in support of their plea against the applicability of the doctrine of unjust enrichment. Sh. Kalifullah at this stage fervently pleaded that the learned appellate authority may be directed to dispose of the case at the earliest. We desire that the learned appellate authority to dispose of the matter at his earliest convenience.
2. The Commissioner after recording the above paragraph has observed as follows:- "The Chartered Accountant's certificate produced merely indicated that landed cost is higher than sale value and on that basis, opines that customs duty has not been passed on to the customers which is clearly inadequate evidence. The accounts ledgers showing disposal of the imported silk also do not throw any additional light on this aspect." 3. Ld. Counsel Shri Raja Kalifullah has stated that they have produced Chartered Accountant's certificate along with all the evidences and there is no dispute that the goods valued at Rs. 76,88,837/- have been sold at Rs. 70,94,860/- in the matter of Shakun Overseas Ltd. and thus they have incurred a loss of Rs. 5,73,977/- as against the differential duty of Rs. 7,59,584/-. Similarly, in the case of Siddharth International, the landed cost was Rs. 24,83,890/- and have been sold at a price of Rs. 23,02,007/- thus they have been sold at a loss of Rs. 1,81,883/- whereas they duty involved was only to the extent of Rs. 1,95,139/-. The Ld. Counsel has therefore submitted that in the sale of mulberry raw silk, the incidence of duty has not been passed on to the customer and the same has been borne by them. They had produced before the departmental authorities the sales bills, accounts ledgers, balance sheet and the certificate of Chartered Accountant and after verifying all these documents, the figures stated by them as well as by the Chartered Accountant has not been disputed by the department. The only finding given by the Ld. Commissioner is that the Chartered Accountant's certificate produced merely indicates that the landed cost is higher than sale value and on that basis opined that the Customs duty has not been passed on to the customers which according to her is clearly inadequate evidence. The Accounts Ledger showing the disposal of the imported silk also do not throw any additional light on the this aspect. The Ld. Counsel states that they have produced all accounts to satisfy the department that the duty burden has not been passed on to the actual consumers and the same has been borne by them only. The Ld.
Advocate has also invited our attention to the judgment rendered by the Hon'ble High Court of Judicator at Madras in the matter of Addision & Co. Vs. CCE, Madras reported in 2001 (129) ELT 44-Madras, in which it has been held that the primary object of the provision is to deter or prevent unjust enrichment of the manufacturer-assessee who has paid duty and who seeks refund of the same and it is not directed at the buyer or dealer who has entered into arms length transaction with the manufacture and has sold the goods to sub-dealers, retailers or consumers. The Hon'ble High Court has held that there can be no passing on the incidence of duty if the manufacturer merely reduces his burden by receiving the refund. In such a situation clause(d) of proviso to Section 11 B (2) would be applicable, which refers to "duty of excise paid by the manufacturer if he had not passed on incidence of such duty to any other person." The Hon'ble High Court also held that the manufacturer is not liable to produce evidence to show as to who the ultimate consumer was or whether such consumer had borne the burden of duty. It has been held further that the Tribunal's order rejecting the manufacturer's refund claim solely on his inability to produce such evidence was held to be erroneous and was set aside. Ld. Counsel further submits that he ha discharge his burden of bearing the incidence of duty and he cannot produce to the department the books of accounts of the consumers to whom they have sold the goods.
4. The Ld. DR Shri A. Jayachandran while reiterating the findings of the Ld. Commissioner has stated that they have admittedly submitted the Chartered Accountant's certificate and the accounts ledger showing the disposal of the imported silk but they do not throw any additional light on the aspect that they have not passe don the burden to the actual customers. In other words, this transaction only proves that the goods have been sold at a price lesser tan the landed cost.
5. We have considered the submission made by both the parties and observe that there is no rebuttal from the side of the department that the appellants have not sold the gods less than the landed cost. They have also produced all the books of accounts, invoices, ledgers and the certificate issued by the Chartered Accountant to show that the entire incidence has been borne by them as could also be seen from the fat that the landed cost was more and the goods were sold at a price less than the landed cost. The duty in both the cases and the loss incurred by them is more or less similar and therefore, we find that the incidence of burden has not been passed on by them to the actual customers. This was also the vie of the Apex Court in the case of UOI Vs. Solar Pesticides (P) Ltd. [200 (116) ELT 401-SC] and Mafatlal Industries Ltd. Vs. UOI [1997 (89) ELT 247-SC] wherein it is stated that normally the presumption is that the burden of incidence has been passed on to the customer to whom the goods have been sold but this presumption is subject to rebuttal. We find that the appellants have rebuttal this presumption by showing the Chartered Accountant's certificate duly supported by Accounts ledgers, Sales Bill, etc. In view of the above facts and circumstances and also in the light of the judgment of the Hon'ble High Court of Judicature at Madras in the case of Addision & Co. Vs. CCE, Madras and the Apex Court judgment in the case of UOI Vs. Solar Pesticides (P) Ltd. (supra) and Mafatlal Industries ltd. (supra), we find that incidence of duty in all these cases have not bee passed on to the actual customers and the same have been borne by the importer themselves. We, therefore, set aside the impugned order of the Ld. Commissioner and allow the appeals with consequential relief, if any.