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2014 (11) TMI 528 - AT - CustomsDenial of refund claim - Unjust enrichment - import of seven consignments of CD Pick Up Lense Units - exemption under Notification No. 25/99-CUS. - Since Department denied the exemption, appellant paid basic customs duty @ 25% adv. - Whether the refund claimed is hit by unjust enrichment as per section 27 of Customs Act - Difference of opinion - Majority order - Held that:- Though the rate of additional customs duty and SAD remain the same, since the additional customs duty and SAD is calculated on the value which is sum of CIF price plus basic customs duty, increase in the rate of basic customs duty would also result in payment of higher quantum of additional customs duty and also the SAD. The Additional Customs Duty and SAD are cenvatable and it is not disputed that refund claim of ₹ 25,28,755/- out of total claim of ₹ 25,98,820/- represents the additional customs duty and special additional customs duty whose Cenvat Credit has been availed. The appellant, therefore, are eligible only for the refund of the balance amount of ₹ 10,63,065/- as for refund of Additional Customs Duty & SAD of ₹ 25,28,755/- the Cenvat Credit of this amount taken would have to be reversed which has not been reversed. Department does not dispute the cost data about the cost of manufacture of CD Deck Mechanism and average selling price of CD Deck Mechanism during July 03 to Sept. 03 period and Oct. 03 to March 04 period. From the fact that during 2003-04 the Appellant Company made the profit of about ₹ 6 Lakh it cannot be concluded that they had not sold CD Deck Mechanism during Oct. 03 to March 04 period at a loss. Looking to the facts of this case I am of the view that there is no reason to disbelieve the appellant’s contention backed by C.A. Certificate and cost data that incidence of customs duty whose refund is being claimed was not passed on by them to the customers - refund claim of only basic customs duty of ₹ 10,63,065/- would be available to the appellant, as the balance amount of ₹ 25,28,755/- represents additional customs duty/SAD whose Cenvat Credit has been taken by the appellant. Refund of ₹ 10,63,065 is allowed to the appellant by holding the same as not hit by bar of unjust enrichment. However, as the appellant has already availed Cenvat credit to the extent of ₹ 25,28,755/- (Rupees Twenty five lakh twenty eight thousand seven hundred and fifty five only), they are not entitled to the cash refund of the same - Decided partly in favour of assessee.
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