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TMI Blog2024 (11) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... s, order of the Commissioner (A) dated 20.02.2019 allowing the appeal of the appellant by holding that exemption of CVD under Notification No. 30/2004-CE dated 09.07.2004 is available to the appellant and he has allowed the appeal with consequential relief and the said decision has not been challenged by the Revenue and thus attained finality. Further, find the refund has been rejected primarily on the ground of unjust enrichment. In the appellant s own case, this Tribunal has allowed the appeal of the appellant vide Final Order [ 2019 (4) TMI 448 - CESTAT CHANDIGARH] and in the said order the Division Bench of this Tribunal has discussed all the issues which are involved in the present case and has allowed the appeal of the appellant with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No. 30/2004-CE 09.07.2004; thereafter, the appellant paid the CVD under protest and a letter of protest was also filed. The appellant at the time of assessment of the bill of entry deposited whole of the disputed duty amount out of their pocket under protest. 2.3 Thereafter, the appellant field appeal before the Commissioner (Appeals), who vide Order-in-Appeal dated 20.02.2019 relied upon the Final Order No. A/61020/2016-CU[DB] dated 02.08.2016 passed by the CESTAT in the appellants own case and allowed the appeal of the appellant with consequential relief. Thereafter, in consequence of the said order of the Commissioner (Appeals) the appellant filed a refund claim before the adjudicating authority, the adjudicating vide the Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n stayed by any higher Court and thus attained finality. He further submits that the adjudicating authority in Order-in-Original while ordering to transfer Rs. 9,05,006/- to the consumer welfare fund on the ground of unjust enrichment wrongly observed that the appellant has not discharged the onus that duty element has not been passed on to any other person as per Section 27 of the Customs Act, 1962. 5. He further submits that the Principle of unjust enrichment is not applicable to any such amount which is not a duty and cannot be passed on to the customer. He further submits that both the authorities below have wrongly presumed without any iota of evidence that the duty has been passed on to the customer. He further submits that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, in the appellant s own case, this Tribunal has allowed the appeal of the appellant vide Final Order No.60376-60380/2019 dated 02.04.2019 and in the said order the Division Bench of this Tribunal has discussed all the issues which are involved in the present case and has allowed the appeal of the appellant with consequential relief. The said decision of the Tribunal has not been stayed till date and therefore the same is binding on the revenue. 9. Here, it is pertinent to reproduce the said findings which are reproduced here in below: 6. On careful consideration of the submissions made by both sides, we find it is a fact on record that the appellants have paid CVD and been under protest and the letter of protest has not denied by the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d loss. account. It is immaterial and Irrelevant for the Tribunal and equally for us as to what the Assessee terms this amount in his Books of Account. Even if it is shown on the 'expense side' that does not mean that the presumption that the burden has been passed to the consumer can be raised. 11. 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, we hold that 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 dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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