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2015 (5) TMI 239 - AT - CustomsDenial of refund claim - Unjust enrichment - provisional duty was paid - later found that goods were covered by the Advance License - Held that:- It is clear from the facts that consequent to Hon'ble High Court's direction, an amount of ₹ 6,13,139/- was paid as duty even though the Bill of Entry was assessed provisionally. Therefore, the case of Veekay Products Ltd. (2013 (9) TMI 587 - CESTAT MUMBAI) is not applicable. - duty was finally assessed by the order of the Commissioner. At the time of provisional assessment, the amount was paid as duty and the goods were released. Clearly when the amount has been paid as duty, the test of unjust enrichment will have to be applied. - Simply stating that the goods were sold at a loss does not establish that the duty incidence was not passed. - C.A. certificate dated 19.11.2010 clearly states that the amount of duty has been added to the cost of material purchased in the balance-sheet. This establishes that burden of duty was passed to the customers - appellant has not been able to clear the test of unjust enrichment - Decided against assessee.
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