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TMI Blog2016 (9) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... hat:- by following the dictum laid by the Hon'ble High Court in the Asia Pacific Commodities Ltd Vs Asst. Commissioner of Customs, Kakinada-I [2012 (11) TMI 919 - ANDHRA PRADESH HIGH COURT] wherein it was held that the refund of cess is not hit by the bar of unjust enrichment, the facts and issue being identical, we hold that refund of cess is not hit by unjust enrichment and the appellant is elig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l export duties, levies etc. would be on account of ITC Limited and all import duties, levies etc. shall be on the foreign buyers account. The invoices relevant to all the shipping bills denoted the value of exports as one composite figure with a breakup of its various components. Till 31-05-2006, the Agricultural and Processed Food Products Export Cess Act, 1985 imposed a cess of 0.5% on the FOB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 30-10-2006, 36, 37 38/2006, all dated 26-12-2006 and 11, 12 13/2007 all dated 08-02-2007. These orders were appealed against by the Department by preferring two appeals in terms of Section 129D(2) of the Customs Act, 1962 on the ground of unjust enrichment and the ground that the FOB value was inclusive of cess and that its incidence had been passed on. 4. At the time of hearing, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under the Cess Act and, therefore, the presumption under Section 28D of the Act stands rebutted by the appellants. The CCE(A) went utterly wrong in construing the point A6 ignoring paragraph 14 of incoterm as well as the sale contract between the appellant and buyer. Therefore, the CESTAT was justified in holding that the finding of CCE(A) that FOB value included the cess is unsustainable. We ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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