Circular No. 235/69/96-CX dated 31/7/96

Government of India,
Ministry of Finance Department of Revenue,
New Delhi

Subject: Recent Madras High Court decision in the case of Collector of Customs and other vs. Indo-Swiss Synthetic Gem Manufacturing Co. Ltd. passed by divisional Bench presided over by Hon"ble Chief Justice - Reg.

Attention is invited to the above cited decision of Madras High Court reported in (1992) 40 EEC 31 (Madras). Hon"ble High Court has observed that "no manufacturer will be charitable enough to exclude customs duty paid on the raw material, from the price of finished products". Hon"ble Court has further held that what is contemplated in Section 27(2) (a) of Act is relatable to passing on the incidence of duty to any other person for determination of the question of refund claims and accordingly, the Bombay High Court"s view in the case of M/s Solar Pesticides Ltd. (which is presently under appeal in Supreme Court) that the person who paid the duty of customs or excise is entitled to refund of duty so paid, if he had not "directly" passed over incidence of such duty to any other person, does not appear to be correct as the word "directly" does not find mention in the said section.

This judgement of Hon"ble Madras High Court is favourable to the Revenue. At least, as regards the raw material, the Hon"ble Court has come to a conclusion that the question of not passing the burden of duty on to consumer . simply does not arise.

Sd/-
(Meenu S. Kumar)
Under Secretary to the Government of India

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