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TMI Blog2014 (12) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... any evidentiary value that CVD paid has not been recovered from the customers. In view of CESTAT s order dated 26.9.2009 in the case of the appellant the sale prices of ceramic tiles will be deemed MRP for the goods imported and sold after July 2005. By not declaring the MRP at the time of import, it cannot be said that ceramic tiles were not sold at MRP. Further from the case of Seaking marine Services vs. Commissioner of Customs, Mumbai (2010 (6) TMI 427 - CESTAT, NEW DELHI) and GAIL India Limited vs. CCE, Gwalior (2010 (10) TMI 445 - CESTAT, NEW DELHI), relied upon by the Revenue, the ratio laid down is loud and clear that mere claim of deposit of a money during investigation and production of Chartered Accountant s certificate is not the ultimate fact to hold that incidence of duty has not been passed on to the consumers. In the case of present appellant, it is more glaring as appellant are having a sale pattern of declaring MRP at the time of imports and selling the same at that MRP at the time of sale. There is no evidence on record that sale pattern of MRP has been revised by the appellant based on transaction value/ invoice value, after July 2005 to what was prevailing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the appellant and a show cause notice was issued on 24.5.2007 for determination of differential duty. During the currency of investigation undertaken by the DRI, the appellant paid up the entire differential of CVD ₹ 1,57,35,596/- vide 10 challans between April 2006 and April 2007 and also an amount of interest ₹ 6,24,372/- vide challan dated 10.7.2006. The said show cause notice culminated into an order-in-original No. KDL/Commr/ 19/2008 dated 31.03.2008 passed by the Commissioner of Customs, Kandla confirming, inter alia, demand of duty of ₹ 1,83,19,587/-. In appeal filed by the appellant, CESTAT Ahmedabad vide its order No. A/2015-2019/WZB/AHD/2009 dated 26.09.2009 partly set-aside the order-in-original dated 31.3.2008 by holding that the imported tiles were liable to be assessed to duty of CVD on the basis of MRP and that the demands are barred by limitation having been raised on 24.5.2007 for the period July/ August 2005 to March 2006. 3. Shri Anand Nainawati (Advocate) appearing on behalf of the appellant during hearing as well as through written submissions received on 14.11.2014, made the following arguments:- (i) That appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o argued by the learned AR that even if the amounts were paid during investigation but the amount paid has to be considered as payment of duty because on merits the duty demanded was found payable by CESTAT under Section 4A of the Central Excise Act, 1944 and accordingly case laws relied upon by the appellant are not applicable. Learned AR relied upon the following case laws in support of his arguments:- (a) Shree Baidyanath Ayurved Bhavan Limited vs. CCE Guntur - [2009 (238) ELT 680 (Tri. Mum.)] (b) Seaking Marine Services vs. CC, Mumbai - [2010 (259) ELT 113 (Tri. Del.)] (c) GAIL India Limited vs. CCE, Gwalior - [2011 (264) ELT 393 (Tri. Del.)] (d) CCE, Bangalore vs. Srikumar Agencies - [2008 (232) ELT 577 (S.C.)] 5. Heard both sides and perused the case records including the written submissions. The issue involved in the present proceedings before us is whether in the refund claims filed by the appellant the bar of unjust-enrichment under the provisions of the Customs Act, 1962 is applicable or not. The facts leading to the present proceedings as outlined by the first appellate authority, as indicated in Para -2 above. 5.1 The issue whether or not Additional Du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat usually no MRP intimation is given by the importer. In their case such MRP was being affixed from their depots at the time of sale of the goods. 5.2 From the above facts on record it is clear that appellant earlier paid duty on MRP at the time of clearance and selling the goods at a MRP. There is no evidence on record brought by appellant that appellant has changed his pattern of sale after July 2005 to the practice what was prevailing before July 2005. As the appellant was following MRP based sale before July 2005 and does not indicate any change in pattern of sale simply saying that amount of ₹ 1,63,59,968/- is shown in Annexure J (Loans and Advances) of their accounts as customs duty receivable, will not be of any evidentiary value that CVD paid has not been recovered from the customers. In view of CESTATs order dated 26.9.2009 in the case of the appellant the sale prices of ceramic tiles will be deemed MRP for the goods imported and sold after July 2005. 5.3 In the case of Shree Baidyanath Ayurveda Bhavan Limited vs. CCE, Nagpur [2009 (238) ELT 680 (Tri. Mumbai)], relied upon by the first appellate authority, it was held that when goods are sold at MRP to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore us the evidence of passing on the incidence of duty to the ultimate consumer is very much there inasmuch as the goods are printed with MRP and sold to the ultimate consumer on the MRP, which is inclusive of Central Excise duty. It is, therefore, evident that the incidence of duty has been passed on to the ultimate consumer. Had the ultimate consumer bought the goods at a price MRP minus the Central Excise duty then only it could have been inferred that the incidence of duty has not been borne by him. However, this is not the situation in the present case. Hence, the ratio of the Addison and Co. case law is not applicable to the facts of the present case. 8. The Hon ble Supreme Court in the case of Sahakari Khand Udyog Mandal Limited vs. Commissioner of Central Excise and Customs reported in -[2005 (181) E.L.T. 328 (S.C.)] has held that the doctrine of unjust enrichment is that no person can be allowed to enrich inequitably at the expense of another. A right of recovery under the doctrine of unjust enrichment arises where retention of a benefit is considered contrary to justice or against equity. The Hon ble Supreme Court has further held that before claiming a relief of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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