9911796707
TMI Blog2016 (3) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... r corroborative evidence like balance-sheet and calculation of amount etc. cannot be brushed aside and looks to be fair and reasonable. Therefore, the appellant is eligible for refund amount with interest. - Decided in favour of appellant - C/223/2012-Mum - Final Order No. A/2431/2015-WZB(SMB) - Dated:- 10-7-2015 - Shri Anil Choudhary, Member (J) Shri Anil Balani, Advocate, for the Appellant. Shri S.J. Sahoo, Assistant Commissioner (AR), for the Respondent. ORDER The appellant is in appeal against the impugned Order-in-Appeal No. 11(CRC-IV)/2012(JNCH)/IMP-09, dated 31-1-2012 passed by the Commissioner of Customs (Appeals), JNCH, Mumbai-II by which the refund claim of excess duty paid has been rejected on the ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes were the same items which were imported by M/s. Veva International and which were sold to various customers. However, it is completely silent as to the price at which the transferred goods were sold by M/s. Karan Associates to their customers. During the hearing, the appellant referred to the copy of the stock ledger for the period 1-4-2004 to 31-3-2005 of M/s. Karan Associates to correlate the stock transfer from M/s. Veva International with the subsequent sale by M/s. Karan Associates. The following two entries were correlated by the appellant. KARAN ASSOCIATES Stock Ledger for the period 1-4-2004 to 31-12-2004 ICL7107 CPL Document No. Date Ref. No. Date Party Name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is clear from the above that the goods have been sold at price much higher that the price at which they were imported. The goods were imported by M/s. Veva International and sold by M/s. Karan Associates, both of which are proprietary concerns of the appellant Shri Naresh Jogani. The refund has been claimed by Shri Naresh Jogani in the name of M/s. Karan Associates of the excess duty paid by M/s. Veva International on the ground that both are his proprietary concern. Under the circumstances, it cannot be held that incidence of duty was not passed on to the buyer just because there was a stock transfer by M/s. Veva International to M/s. Karan Associates before the sale of the goods to independent buyer. 11. The appellant has filed Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the purchase value of the consignment as per the assessable value declared by the appellant, whereas the value to be considered is enhanced value. It has been demonstrated that at page 8 of the paper-book, after enhancement of the assessable value along with duty the value per unit came to ₹ 5.33 and not ₹ 2.27 as considered value by the learned Commissioner (Appeals). The learned Counsel has produced a copy of calculation duly certified by the C.A., wherein the calculation has been given with the total sales as per the sale bills comes to ₹ 1,62,750/- for which cost of the consignment - as per original duty assessment of ₹ 16,534/- is ₹ 1,24,930/-, recovery above cost comes to ₹ 37,820/-. Fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Commissioner of Customs (Export), Chennai v. BPL Ltd. - 2010 (259) E.L.T. 526 (Mad.), wherein it was held that C.A. certificate is merely a piece of evidence acknowledging the facts and it is not sufficient to show that the duty burden has not been passed on to any other person. 4. The learned AR relies on the impugned order and further has taken me to para 3 of the impugned order where the learned Commissioner (Appeals) has recorded that the personal hearing was fixed on 4-10-2011. Shri Naresh Jogani, appeared before me for the hearing and stated that the documents connecting the sales bill of Karan Associates with the goods imported by Veva International vide Bill of Entry dated 30-6-2004 will be submitted within one mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were sold to various customers. Thus, there is nothing perverse in the facts recorded in the appeal, which recorded on the basis of the documents. I further find from the impugned order that the learned Commissioner (Appeals) have failed to correlate the documents produced before him and erred in arriving at the conclusion on the ground of unjust enrichment. I find that the amount has been shown as reimbursible in the balance-sheet and also the same has been certified by the C.A. By way of additional evidence, the appellant have also demonstrated as per the calculation given duly certified by the C.A. at page 37 and 38 of the paper book, wherein from the sale consideration after recovery of cost as per the original declaration filed and du ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
