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TMI Blog2014 (11) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... 1986 and May, 1988 for import of Spin Finish Oil, the dispute with respect to the exemption under Notification No. 51/86 dated 17.2.1986, came to be finally settled in favour of the appellant by final order No. 159 to 162/93-C dated 21.5.1993 of this Tribunal. Consequently, the appellant filed refund claim for refund of Rs. 24,00,891/- being the differential duty of customs. The said refund claim was allowed by Order-in-Original dated 27.4.1994, but the amount was ordered to be credit to the consumer welfare fund by invoking the principles of 'unjust enrichment'. The appellant successfully challenged the order dated 27.4.1994 in Writ, which was set aside by the Hon'ble Bombay High Court vide its order dated 29.4.2004. That pursuant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht by them is not passed on to the buyer of the polyester yarn by producing the certificates of the Chartered Accountant. The Chartered Accountants have certified the working of the cost price as well as the policy of fixation of sale price. Having regard to the explanation contained in the certificates, the incidence of higher customs duty on the imported finish spin finish oil was not included as cost in the sale price of the polyester yarn by the importer as it did not, in any way, influence the prices of the polyester yarn manufactured and sold by them in the market. 12. Having regard to the insignificant cost of the spin finish oil involved in the manufacture of the polyester yarn and having regard to the certificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umulative analysis of the documents and materials produced by the importer and the fact that the prices of polyester yarn is determined by the market forces based on demand-supply position and also the fact that the cost of spin finish oil has not formed part of the cost while considering cost of sale of polyester yarn and that the price of polyester yarn during the period was lower than the price of polyester yarn prior to import, I am satisfied that the importer has discharged its burden to show that incidence of duty of which refund is claim is not passed on to the buyers of the goods." 2.1 Being aggrieved by the order granting refund, the Revenue preferred appeal before the Commissioner (Appeals) on the ground that the Dy. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on duty burden to any other person, it is settled position that the certificate of Chartered Accountant is itself, not supported by any documentary evidence, does not prove that the duty has not been passed on to any other person. So far the contention of the assessee/appellant that the prices have fallen of the polyester yarn, hence unjust enrichment is not applicable, is not acceptable in view of the decision of the Apex Court in the case of Allied Photography Ltd. The sale price may be used as corroborative evidence but not as substantive evidence on the point of unjust enrichment. On the aforesaid observations, the appeal of the Revenue was allowed and the order of the Dy. Commissioner sanctioning the refund was set aside. Being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is not the fact obtaining from the record. The appellant further draws my attention to Circular No. 18/2010-Cus dated 8.7.2010, wherein the CBEC has clarified that with respect to CVD, the field formation shall accept certificate of the Chartered Accountant to satisfy itself that the burden of duty is not passed on to any other person and further clarified that there is no need for insisting on production of balance sheet or profit and loss account. Thus, he prays for setting aside the impugned order and restoring the order of the Dy. Commissioner sanctioning refund. 4. The learned Dy. Commissioner (AR) appearing for the Revenue relies on the impugned order. He further relies on the ruling of this Tribunal in the case of Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alance Sheet of relevant year in which the disputed duty was paid. (ix) Sale invoice of final product of pre and post importation. (x) Declaration that the goods were not sold on High Seas Sale Basis etc. 5.2 Further, in view of the detailed categorical finding recorded by the Dy. Commissioner after examining the various documents on record in addition to the CA's Certificate, the refund has been allowed by a speaking order holding that 'unjust enrichment' is not attracted in the facts and circumstances of the case. Further, I find that the appellate order is non-speaking order and the refund sanctioning order has been set aside only taking notice of the grounds of appeal without recording or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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