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TMI Blog2017 (7) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... against the order of the Commissioner (Appeals) whereby the Commissioner (Appeals) allowed the appeal of the respondent. The limited issue involved in the case is that whether the refund which was sanctioned by the original authority and credited into Consumer Welfare Fund is hit by unjust enrichment or otherwise. 2. Shri S.J. Sahu, Ld. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterates the grounds of appeal. He submits that the respondent have not submitted proper documents to prove that the incidence of duty has not been passed on. Therefore the Commissioner (Appeals) should not have given relief to the respondent in absence of proof that the incidence of duty has not been passed on. It is incumbent on the assessee to produce the necessary evidence, however the respondent have not submitted the satisfactory evidence to the original authority, accordingly the sanctioned refund was credited into Consumer Welfare Fund, for this reason the Commissioner (Appeals) should not have allowed the appeal. He placed reliance on the decision of this Tribunal in the case of A.K. Enterprise Vs. Commissioner of Customs (Port), Kolkata. 3. None appeared on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Polyester Yarn (POI) based on report of Expert. Committee on Textile Policy, 1999 published by Indian Council for Research on International Economic Relations, New Delhi showing decline in domestic market price from ₹ 150.3 per kg in 1995 96, to ₹ 89.4 and ₹ 69.9 in 1997-98 and 98-99 respectively, (l) Balance sheet self-certified by importer as on 31st March, 2008 showing in current assets Customs Duty of ₹ 22,55,001/- paid under protest as recoverable. The balance sheet shows that since there is no business in the firm since year ending 31st March, 1999 no profit and loss account is annexed to the balance sheet. (m) Certificate of Chartered Accountant Shri S.D. Kawde of SDK Associates to show that amount of ₹ 22,53,001/- is part of current assets of the Appellant being paid under protest to Customs Department and is recoverable. 3. On the strength of these documents the appellant had stressed that gross purchase cost of the imported goods, excluding the duty paid under protest was ₹ 32,70,144/- @157/- per Kg, whereas the same vas sold at ₹ 18,71,100/- in 1998 @ ₹ 90 Per Kg; that the sale invoice showed that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 'in the Balance sheet. Reliance was placed upon the decisions co the Hon'ble Tribunal in the case of Maharashtra Cylinder Ltd, 2003(08) LCX 0243, and Kirloskar Oil Engines Ltd, 2004(08) LCX 0310 , and it was held that none of the case-laws cited by the Appellant were applicable in the instant case. It was concluded that the appellant had feed to submit any reliable evidence iii support of contention that the duty incidence was not passed on to the customer, and that the onus cast upon the Appellant under section 28D read with section 27(2) was not discharged, that thus the appellant was not eligible for refund. The refund of ₹ 22,55,001/- was sanctioned but credited to the consumer welfare fund. 5. The Appellant has immediately come in challenge against the impugned order-in-original. Considering the directions of the Hon'ble High Court that the decision on refund after adjudication was to be taken within 8 weeks, and the same was already delayed inordinately, the appeal was taken up for hearing on an urgent 'basis. Shri Saniay Agarwal attended the personal hearing on behalf of the appellant. Submissions made before the original authority as well as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra) are on different facts and not applicable to the instant case. Whereas in the former, the issue involved was not of unjust enrichment on refund of duty paid under protest but 'applicability of Central Excise duty at the time of removal in case goods are cleared at classification price indicated by the department which would be unaffected by any subsequent reduction in price as per price variation clause in the agreement signed between buyer and seller, in the latter, no invoice relating to sale of the goods was produced and in absence thereof the chartered accountant's certificate without any supporting document was held as not sufficient to discharge the burden of satisfying against unjust enrichment. As against the same the Appellant are relying upon the judgment in the case of Picasso Exports (supra) wherein it was held that non-filing of I.T. Returns and of Balance Sheet was irrelevant for considering question of unjust enrichment when the Appellant could otherwise prove that duty burden could not be passed on to customer in view of huge losses suffered, and the sale price and costing of the goods was not questioned. it was further held that cost of goods is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ownslide. There is no material to show that the Appellant has added the duty paid in protest while arriving at the sale price. It must be noted that, as can be seen from the sales invoice, the goods were sold @ ₹ 90/-kg whereas the expenses incurred in importation of the goods were @ ₹ 314/kg, (inclusive of duty) which was in fact accepted even by the original authority. It has also been demonstrated that the market price of the goods are determined, not by the by adding their costs such as duty etc., but by the prevailing list price of their raw material namely FOY which is determined by the prices published from time to time by The Indian Council for Research on international Economic Relations in respect of Polyester Fibre/yarn and the related raw material. It has therefore been shown that the domestic prices for the instant goods were not in their control and therefore beyond the presumption. u/s 28 D of the Act. Moreover, the invoice clearly shows that the clearance was sought duty free under DEEC scheme which clearly shows that no duty incidence was passed on the buyer and that therefore Section 28C of the Act was infact complied with by dint of their mention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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