By TIOL News Service

MUMBAI, SEPT 17, 2016: THE appellant imported Colour TV sets in the year 2004.

At the time of clearance, there was a dispute regarding levy of CVD on the basis of MRP declared by the appellant. The lower authority concluded that the imported goods are leviable to CVD @16% advon the basis of MRP declared by the appellant and after deduction of abatement as prescribed under Notification No. 13/2002-CE(NT) dated 01/03/2002.

However, since the appellant at the time of assessment paid CVDby applying specific rate of CVD, there was an excess payment and a refund of Rs.10,00,431/- was claimed.

The adjudicating authority credited the refund claimed to the Consumer Welfare Fund on the ground that the appellant failed to establish that the burden of said amount was not passed on to any other person.

This order was upheld by the Commissioner(A) and, therefore, the appellant is before the CESTAT.

It was submitted that since theColour TV sets were sold on MRP based valuation, therefore, unjust enrichment is not applicable as the excess duty paid by the appellant does not influence the sale value of the goods. Moreover, as per the working of the MRP, the excess duty paid was not included in the costing, therefore, the question of passing the incidence of such duty does not arise. Inasmuch as the excess duty of CVD comes to approximately more than Rs.7,000/- per TV set and on the basis of cost data this amount does not appear to be included in the cost of TV sets which establishes that the incidence was not passed on.

The costing worked out by the appellant is as tabulated below -

The AR reiterated the findings of the lower authorities.

After considering the submissions and the data provided by the appellant, the Bench observed -

"5. From the above data, it is not clear firstly the material cost shown as Rs.23,535/-. No bifurcation of assessable value plus duty was given. Secondly no supporting of other elements such as freight, warranty spares, sales tax, dealer scheme, etc. was given. In the absence of any documentary evidence in support of the above data, it is difficult to ascertain whether the excess paid CVD for which refund was sought for is included in the price of the product or otherwise, which is necessary to establish whether the incidence of duty was passed on or otherwise. In this situation, the matter needs to be remanded to the original adjudicating authority. The appellant has to provide the supporting documentary evidence to the adjudicating authority who shall pass a denovo adjudication order after verification of the same…."

The appeal was allowed by way of remand to the original adjudicating authority& he was directed to pass a fresh order within a period of two months.

In passing: Twelve years on and two more months to go…interesting!

(See 2016-TIOL-2437-CESTAT-MUM)