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2021 (9) TMI 359 - AT - CustomsRefund claim - principles of unjust enrichment - duty of customs was paid @7.5% instead of 5% provisionally - At the time of final assessment, the benefit of notification was extended - Entitlement to preferential rate of BCD - ELD THAT:- once it is an admitted fact that duty has been collected in excess from the appellant during pendency of finalization of provisional assessment, the same has to be returned to the assessee once his books of accounts are showing such an excess duty paid as receivable. The same is the sufficient evidence for the fact that incidence of duty has not been passed on by the assessee/manufacturer from the end customers of the product manufactured. The facts of the present case are absolutely in contrast from the decision in the case of HINDUSTAN PETROLEUM CORPN. LTD. VERSUS COMMR. OF CUS. (IMPORTS) , MUMBAI [2015 (2) TMI 1136 - CESTAT MUMBAI]. In M/s HPCL case, the assessee had shown the amount as was prayed to be refunded by him, as expenditure in his books of accounts. It has been held in the said decision that once the amount has been shown as expenditure and not as receivables it definitely becomes the case of unjust enrichment. Admittedly, in the present case, the amount in question was shown as recoverable/receivables. The bar of unjust enrichment is therefore held to have wrongly been invoked by the Commissioner (Appeals). As there have been sufficient documentary evidences in the form of books of accounts on record and thus the Commissioner (Appeals) has been held to have wrongly ignored the said document. In addition to those documents, there has been a certificate by the authorized auditor of the appellant produced on record certifying that the amounts as has been prayed to be refunded has been the receivables by the appellant, the incidence thereof has not been passed on to any other person. The said certificate has to be considered as comprehensive proof in respect of the fact that the burden of duty has not been passed on by the appellant to the respondent more so for the reason that the department has not been able to show that the certificate is incorrect or doubtful. The certificate has to be considered as the sufficient evidence to prove that present is in the case of unjust enrichment. Refund allowed.
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