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2008 (4) TMI 670 - CESTAT, MUMBAI100% EOU – DTA clearance – who is liable to pay duty – held that:- It is also significant to note that under para 9.26 of the Handbook of Procedures, all duties and taxes on clearances by EOU into DTA under para 9.10 of the Exim Policy were to be borne by the purchaser in DTA. The expression used is “all duties and taxes” and not merely “all taxes”. The specific use of the word “duties” is quite clearly intended to inter alia cover central excise duty. If the stand of the Revenue is accepted, it would man that Central excise duty could be charged from the EOU under rule 7 of the Central Excise Rules, 1944 and also from the DTA purchaser under para 9.26 of the Handbook of Procedures. Tax cannot be collected on the same taxing event from two persons. Duty on clearances by the appellants, a 100% EOU, into DTA after obtaining requisite permission from the Development Commissioner is to be recovered from the DTA buyer on the basis of paragraph 9.26 of the Handbook of Procedures, 1997-2002 and Tribunal’s judgement in Interdrill Asia vs. CCE, Belapur [2005 (7) TMI 245 - CESTAT, MUMBAI] Regarding refund – unjust enrichment – held that:- The submission that selling price shown in the invoice of Rs.42.89 is equivalent to the contract price of US $0.80 and duty payable is separately shown on the invoice and, therefore, the appellants could not be held to have recovered any duty from the customers, is not sufficient to discharge the burden of proving that the incidence of duty had not been passed on by the appellants to their customers.
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