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2019 (12) TMI 1219 - CESTAT NEW DELHIRefund of Additional Customs Duty (CVD) - excess payment made under protest - import under Section 3 (1) of Customs Tariff Act, 1975 read with Sl. No. 263 A and condition No.16 of Notification No. 12/2012-EX dated 17.03.2012 - tax burden passed to buyers or not - principles of unjust enrichment - liability to deposit to Consumer Welfare Fund - HELD THAT:- Apparently and admittedly all the relevant documents were made good the deficiency by the assessee-respondent as were sufficient to sanction the refund. Partial amount of claim was rejected only on the ground that Balance-sheet was not showing the accountable of the amount of impugned Bill of Entry. When assessees’ invoice showed a composite price and duty was not indicated separately and the sale price of the goods before as well as after the reclassification, revaluation etc. remained the same, it can be concluded that the incidence of duty was not passed on to the consumer. Merely because the Excise duty is booked as expenditure in Profit & Loss account, it cannot be said the incidence of duty has been passed on. Mere fact that the amount of differential CVD is shown as recoverable in profit and loss account is, in itself, not sufficient to prove that burden thereof has been passed by the assessee to the buyers. Onus otherwise rests upon the Department to prove the same. There is no such evidence produced by the Department. On the contrary, the assessee has placed on record the C.A. Certificate falsifying the allegations of unjust enrichment. Same cannot be ignored, that too, in absence of any evidence to the contrary. The questions decided in favour of the assessee-respondents - Appeal dismissed - decided against Revenue.
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