9911796707
TMI Blog2023 (1) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... efund claim i.e. Rs.97,58,928/- out of Rs.1,08,54,152/- was sanctioned by the original adjudicating authority itself. The rejection for the balance amount has been re-adjudicated by Commissioner (Appeals) vide the order under challenge who while appreciating the C.A. Certificate and audited balance sheets produced by the assessee/respondent has concluded that there is no evidence to show that the burden of differential duty has been passed by the respondent to the prospective buyers. The Mumbai Bench of this Tribunal in another case of COMMISSIONER OF C. EX., PUNE-I VERSUS DGP HONODAY INDUSTRIES LTD. [ 2014 (5) TMI 1096 - CESTAT MUMBAI ] has also held that where the assessee/respondent through the certificate issued by Chartered Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 2. Present is an appeal filed by the department against the Order-in-Appeal No. D-II/245/2021-22 dated 21.06.2021, vide which the order of rejecting the refund for an amount of Rs.10,95,224/- as was directed to be deposited under Consumer Welfare Fund has been set aside, entitling the assessee for the refund of said amount along with the appropriate interest. The facts in brief arising out of impugned appeal are as follows: 2.1 The appellant herein are engaged in the sale of alcoholic beverages. For the purpose, they were importing the liquor. Pursuant to a specific intelligence, that the consignment of the appellant as imported vide Bill of Entry No. 5151645 dated 09.04.2017 was examined. It was observed that the branded alcoholic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he total claim, the sale price was opined to be much more than the total of import value + normal duty + differential duty and that the assessee was found to have failed to show that the burden of duty has not been passed on to the respective buyers, that the refund for said amount of Rs.10,95,224/- was rejected which was directed to be deposited in Consumer Welfare Fund. 2.3 In an appeal against the said order, Commissioner (Appeals) vide the order under challenge has allowed the refund even for the balance amount of Rs.10,95,224/- along with the interest. Being aggrieved department came up with the Review Order No. 16/2021 dated 30.07.2021, wherein it has been observed that though the Chartered Accountant Certificate was furnished by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed on the burden of duty incidence to the prospective buyers would have been the C.A. Certificate and audited balance sheets. Both the documents were duly been produced even before adjudicating authorities below. The original adjudicating authority had wrongly ignored those documents. Hence, there is no infirmity in the order under challenge when due consideration to these documents has been given. Otherwise also, the department could not have produced any document to falsify both these documents. Accordingly, order challenge is prayed to be upheld and appeal is prayed to be dismissed. 6. After hearing both the parties and perusing the record, it is observed and held as follows: 6.1 The amount of Rs.1,08,54,152/- was the amount dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly enriched. Such findings are liable to be set aside and assessee is entitled for the refund. 7. The Mumbai Bench of this Tribunal in another case of Commissioner of C.Ex., Pune-I Vs. DGP Honoday Industries Ltd. reported as 2015 (329) E.L.T. 439 (Tri.-Mumbai) has also held that where the assessee/respondent through the certificate issued by Chartered Accountant and the Balance Sheet have shown that the amount in question is receivable from the department. The bar of unjust enrichment cannot be applied upon such assessee. I have no reason to differ with these findings, specifically for the reason that there is no documentary evidence on record to falsify the Chartered Accountant Certificate. The observations of review order are therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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