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TMI Blog2011 (8) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... eir books of accounts that the amount paid as duty was not charged as expenditure and the same is retained as amount receivable from customs - At no point of time the appellant produced their financial documents or a certificate issued by the Chartered Accountant showing the incidence of duty - Decided against the assessee. - C/444 of 2010 - - - Dated:- 17-8-2011 - Hon ble Dr. P. Babu, Member (Technical) Appellant : Shri Suriyanarayanan, Advocate Respondent : Shri R.S. Srova, JDR Per : Dr. P. Babu; M/s. Gujarat Narmada Valley Fertilizers Company Limited (GNVFC for short) imported 27500 MTs of Jordan Rock Phosphate and paid customs duty of Rs. 43,98,444/-. There was some recoverable cargo after removal of the quantit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeal) rejected the arguments on merits that the amount should be considered as deposit. He found that there was a complete vacuum of documentary evidence which could support the respondent s claim against unjust enrichment. He further observed that adjudicating authorities cannot leap into darkness to order refund in mechanical routine based on a mere imitative reproduction of appellate decisions when the claimant s arguments in the case under consideration are unsupported by verifiable evidences and law. He reiterated his findings that the presumption of unjust enrichment in this case was not refutable with any documentary evidence. 3. Against this pivotal point, the appellant s represented by Shri Suriyanarayanan, learned ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith many other judgments relied upon of the Hon'ble Supreme Court in the case of UOI vs. Solar Pesticide Pvt. Limited 2000 (116) ELT 401 (S.C.). The apex court has explained the words incidence of such duty in detail which reads as under:- 17. The use of the words incidence of such duty .. ? is significant. The words incidence of such duty mean the burden of duty. Section 27(1) of the Act talks of the incidence of duty being passed on and not the duty as such being passed on to another person. To put it differently the expression incidence of such duty in relation to its being passed on to another person would take it within its ambit not only the passing of the duty directly to another person but also cases where it is passed on indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the fund. The word fund means, according to Section 2(21A) of the Act, the Consumer Welfare Fund established under Section 12C of the Central Excises and Salt Act, 1944. 13. Clause (a) of proviso to sub-section (2) of? Section 27 of the Act however stipulates that the amount of refund which is found due will not be credited to the fund and shall be paid to the applicant, inter alia, if such an amount of refund is relatable to the duty and interest which has been paid by the importer and if he had not passed on the incidence of the same to any other person. In other words if it cannot be shown that the duty, in respect of which refund is claimed, had not been passed on to any other person then in such an event the amount of refund du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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