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2005 (5) TMI 121 - AT - CustomsRefund - Seeking benefit of exemption contained in Notification No. 20/88-Cus. - Unjust enrichment - Imports Kraft Paper at concessional duty rate for use as raw material in the manufacture of Transformers - HELD THAT - In the present case the Chartered Accountant has clearly stated that the element of duty has not been passed on to the Electricity Board as the cost of the Transformer had already been pre-determined in the contract and it had been borne by the assessee. The Revenue has not rebutted the Chartered Accountant s Certificate as held in the case of M/s. Toyota Kirloskar Motors Ltd. 2005 (2) TMI 362 - CESTAT BANGALORE . The judgment of Superintending Engineer TNEB 2003 (11) TMI 156 - CESTAT CHENNAI would also apply wherein refund was not to be hit by the Principle of Unjust enrichment as the huge amounts were absorbed by the Government on behalf of TNEB. The Craft Paper was exempted from duty and the assessee had paid the duty at initial stage and the Tribunal in its earlier order upheld the assessee s claim for grant of exemption. The cost analysis had clearly indicated that Craft Paper was exempted from duty and the cost of Transformers did not include this duty element in terms of the Chartered Accountant s Certificate. The Chartered Accountant s Certificate cannot be faulted in the present case. Respectfully following the ratio of the citations referred to by the learned Counsel the impugned order is set aside and the appeal is allowed.
Issues:
1. Refund claim rejection by Deputy Commissioner of Customs. 2. Eligibility of concessional duty rate for imported Kraft Paper. 3. Unjust enrichment in refund claim. 4. Acceptance of Chartered Accountant's Certificate. Analysis: 1. The appeal stemmed from the rejection of a refund claim by the Deputy Commissioner of Customs, which was initially sanctioned but later disallowed by the Commissioner (Appeals). The appellant had imported Kraft Paper at a concessional duty rate for use in manufacturing Transformers. The Tribunal had previously remanded the matter to grant the refund on the grounds of exemption under Notification No. 20/88-Cus. The issue revolved around the refund claim not being hit by unjust enrichment. 2. The appellant contended that the duty element was not passed on to the purchaser of Transformers, as evidenced by a Chartered Accountant's Certificate. The Commissioner (Appeals) disagreed, setting aside the grant of refund. The appellant argued citing precedents where similar situations were ruled in favor of the assessee, emphasizing that the Chartered Accountant's Certificate should have been accepted. The Tribunal found merit in the appellant's argument, noting that the duty element was not passed on, and the Chartered Accountant's Certificate was crucial in establishing this fact. 3. The learned SDR relied on a judgment where a Chartered Accountant's Certificate was not accepted due to lack of specific details. However, the Tribunal distinguished this case from the present one, highlighting that the Chartered Accountant in this instance clearly stated that the duty element was not passed on to the Electricity Board. The Tribunal found no rebuttal from the Revenue against the Certificate, ultimately leading to the decision that the refund claim was not hit by unjust enrichment. 4. Considering the facts presented and the precedents cited by the appellant, the Tribunal set aside the impugned order and allowed the appeal. The Tribunal emphasized that the Chartered Accountant's Certificate, along with the exemption of Craft Paper from duty and the cost analysis, supported the appellant's claim. The decision was made in line with the principles established in previous judgments, concluding that the refund claim was valid and should not be affected by the principle of unjust enrichment.
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