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2011 (3) TMI 1316 - AT - CustomsRefund for cess - principles of unjust enrichment - appellants claimed that as per the contracts with their foreign buyers, they were liable to bear export duties, taxes, etc. The invoice price was a composite price and it could be inferred that the duty burden had not been passed on. - Held that:- As find that from the vrious definition it is not possible to arrive at a definite conclusion that the FOB value includes the cess paid on export of rice especially in cases where the contract with the foreign buyer specifically provided that the export duty/taxes etc. were to the account of the seller. In all the cases except in the case of M/s. Al Gyas Exports Pvt. Ltd., the appellants have furnished copies of the relevant contracts containing the above clause. Unless the Department is satisfied on examination of the documents showing remittance received by the appellants, the finding in the impugned order that the FOB value recovered included the impugned cess cannot be sustained. As it is, there is no reliable finding in the impugned order to conclude that the disputed cess amounts had been recovered as part of the FOB value. There is no dispute that provisions in the Act pertaining to levy, collection, refund, etc., apply to levy, collection, refund, etc., of cess levied under the APFPEC Act. As provisions relating to levy and collection are borrowed, the provisions relating to short levy, short payment, concomitant disputes and the remedies provided in Sections 128 and 129D(2) of the Act should also be held to have been borrowed for the purpose of APFPEC Act by virtue of the above sub-section. Therefore, we reject the objection raised by M/s. Al Gyas Exports Pvt. Ltd. As regards the claim that a refund claim for excess duty paid can be validly made without challenging assessment under the Act relying on the judgment of the Apex Court in the case of Karnataka Power Corporation Ltd. v. CC (Appeals) [2002 (4) TMI 79 - SUPREME COURT OF INDIA] it is note that a Larger Bench of the Tribunal had considered the ratio of the above decision and the decisions of Flock India case [2000 (8) TMI 88 - SUPREME COURT OF INDIA] and Priya Blue Industries case [2004 (9) TMI 105 - SUPREME COURT OF INDIA] and held that a refund claim was not maintainable unless the assessment order in pursuance of which duty paid was challenged and modified/set aside. As regards the challenge to the impugned order for the reason that the appeal disposed by it had been filed following review initiated after the period prescribed, it is observed that this ground concerns facts. This ground is taken first in the proceedings. The ground is not substantiated with details of the relevant dates, etc. Moreover, the assessee had participated in the proceedings before the Commissioner (Appeals) without raising this objection. In the circumstances, reject the challenge to the impugned order raised by M/s. Al Gyas Exports Pvt. Ltd. Appeal dismissed.
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