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TMI Blog2019 (4) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... ificate dt.25.03.2017 on record. Admittedly at the time of clearance of the imported goods, the appellants have paid CVD under protest as the said duty was not recovered from the customers evidencing invoiced issued by the appellants. Therefore, the appellants have passed the bar of unjust enrichment - Merely, the appellants have made debit entry in the Profit and Loss Account as expenditure and not shown in the balance sheet as dues recoverable from the department cannot be the reason to deny the refund claim for the reason that the appellants have not passed the bar unjust enrichment - the certificate issued by the chartered accountant certifying that the appellants have not passed the duty incidence to the customers. The appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal. This Tribunal held that the appellants were not required to pay CVD. Consequent to the order of this Tribunal, the appellants have filed refund claims of CVD paid by them for clearances of the imported goods. As during the period in question, the appellant debited the CVD in the Profit and Loss Account and in the books of accounts not shown recoverable from the department, therefore, the refund claims were rejected holding that the appellants have not passed the bar of unjust enrichment. Therefore, the appellants are in appeal before us. 3. Ld. Counsel for the appellant submits that the appellants have paid duty under protest and a protest letter has been filed in the month of May, 2013 relying on various judicial pronouncements t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the letter of protest has not been denied by the Revenue. Moreover, the invoice also confirms that they have not charged any CVD from the buyer. Moreover, it is also mentioned in the invoice itself that all duties of excise exempted vide Notification No.30/2004-CE dt.9.7.2004 and invoice is extracted below:- 7. We further take note of the fact that the chartered accountant also certifies that the amount of CVD has not recovered from the customers and to that effect, the appellant has produced a certificate dt.25.03.2017 on record. 8. We further take note of the fact that the Commissioner (Appeals) in the impugned order has also confirmed that the CVD has been paid and the same was recoverable from the department when the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t shown in the balance sheet as dues recoverable from the department cannot be the reason to deny the refund claim for the reason that the appellants have not passed the bar unjust enrichment as held by the Hon ble Bombay High Court in the case of Sandvik Asia Limited (supra). 12. Further, we find that the certificate issued by the chartered accountant certifying that the appellants have not passed the duty incidence to the customers. Therefore, we hold that the appellants and have passed the bar of unjust enrichment and they are entitled to claim refund of CVD paid under protest at the time of clearance of the imported goods. 13. In the result, we set aside the impugned orders and allow appeals with consequential relief, if any. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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