1. The Revenue is aggrieved by the order of the Commissioner of Customs (Appeals) who has held that the bar of unjust enrichment is not attracted against the respondents herein, who are importers of Cold Storage Plant used for flowers, merely on the ground that they had claimed depreciation of capital goods for Income Tax purposes.
2. We have heard both sides; we find that the lower appellate authority has recorded a categoric finding, which is not challenged, that since the importers are a 100% EOU and hence exempted from payment of Income Tax, even by claiming depreciation they are not going to get any benefit whatsoever or even would not be in a position to recover cost of the impugned goods indirectly. It is also be noted that the depreciation claim had been returned back, as certified by their Chartered Accountant.
3. On hearing both sides, we find that similar issue had come before the Tribunal in the case of Commissioner of Customs & Central Excise v.Resham Singh & Co. Pvt. Ltd. and the Tribunal held that the incidence of duty cannot be held to have been passed on to the customers solely on such ground that the depreciation under the provisions of Income Tax Act had been claimed by the importers. The Tribunal also noted that the Respondents herein produced certificate from Chartered Accountant certifying that burden of extra duty was not passed on to any other person. The appeal of the Revenue was rejected by the Tribunal. In the present case the only ground raised in the appeal is that since the respondents have claimed depreciation under the Income Tax Act, it is established that they have passed on the duty burden to their customers. However, in the light of the Tribunal's order cited supra the ground raised by the Revenue requires to be rejected. It is also to be further noted that the Chartered Accountant of the Respondents has certified that the amount claimed by way of depreciation has not been returned back. Therefore, there is no ground for holding that the respondents have passed on the duty burden to their customers. We, accordingly see no ground to interfere with the impugned order, uphold the same and reject the appeal.