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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 ..... t aside only taking notice of the grounds of appeal without recording or indicating a single finding of the Dy. Commissioner to be perverse. Thus, I set aside the impugned appellate order and restore the order of the Dy. Commissioner dated 20.7.2005 granting refund - Decided in favour of assessee. - Appeal No.C/55/2006 - - - Dated:- 25-7-2014 - Anil Choudhary, J. For the Appellant : Prakash Shah, Shri Prasad Paranjape, Advs. For the Respondent : Shri M S Reddy, Dy Commissioner (AR) JUDGEMENT Per: Anil Choudhary: The appeal filed by M/s Century Enka Ltd. has been preferred against Order-in-Appeal No. 598/2005/MCH/DC/2BII-04 dated 5.12.2005 passed by the Commissioner of Customs (Appeals), Mumbai. 2. The brief fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e quoted herein below:- 11 I have carefully considered the submissions made by the importer. It is the contention of the importer that the sale price of the polyester yarn prior to and post importation of the spin finish oil demonstrates that the price of the polyester yarn post import has fallen. It is further contended by the import that the cost of spin finish oi8l in the manufacture of polyester yarn is insignificant and the major raw materials are PTA/DMT and MEG which are petroleum based products. The price of the polyester yarn is generally governed by the cost of these main raw materials and the cost of spin finish oil is not taken into account for determining the sale price. The cost of spin finish oil does not imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subject imports. This is also demonstrated from the sale invoices submitted by the importer. 13. I further find that the contention of the importer is fully supported by the order of the Tribunal in the case of Commissioner of Central Excise, Mumbai I Vs. Shethia Audio Video Pvt. Ltd. 2003 (161) ELT 453, I hold that, in the absence of any material produced by the department contrary to the certificates of Chartered Accountant and other material produced by the Importer, it is sufficient to satisfy me that, the burden of duty of which the refund is sought, is not passed on to any other person, 14. I am quite conscious that mere charging of the lower price itself may not be sufficient to discharge the burden that the incide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is based on crude petroleum price in international market. Further, as per the appellant, price of polyester filament yarn depends on the market force that is demand and supply. Further, the appellant did not prepare cost sheet as it has no control to influence the price. Further, the consumption of spin finish oil' in manufacture of polyester yarn is insignificant so far as the cost is concerned. Referring to the ruling of the Hon'ble Supreme Court in the case of Sahakari Khand Udyong Mandal Ltd., it was observed that the Apex Court has held that refund of duty is based on equity and even in absence of statutory provisions; the claimant has to prove that he had not passed on duty burden to any other person. As regards the Chartere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned goods and Chartered Accountant's certificate have been considered and thereafter accepted by the Dy. Commissioner. 3.1 He further states that it is not the case of the Department nor finding of the learned Commissioner (Appeals) that Chartered Accountant's certificate is issued arbitrarily or is incorrectly issued. It is also not the case of the learned Commissioner (Appeals) that any specific evidence asked for by him was not provided before him. 3.2 It is further contended by the appellant that the certificate of Chartered Accountant submitted on direction of the Revenue is reliable unless the same is found contrary to the facts, which is not the case herein. The appellate authority have erred in observing that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale invoice of the finished products, it is demonstrated that the price of polyester yarn subsequent to import are lower than the price of polyester yarn prior to the subject imports. (iii) Certificate from the Central Excise authority that the importer has not availed of the proforma credit under Rule 56A/57A of the Central Excise Act, 1944. (iv) End use certificate issued by the Central Excise authority. (v) The certificate of Chartered Accountant submitted in compliance with the Public Notice. (vi) Copy of the Bills of Entry. (vii) No proforma credit certificate (5 Nos.) dated 22.7.1992 issued by the Range Superintendent of Central Excise of the appellant's factory. (viii) Balance Sheet of r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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