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2023 (12) TMI 448 - AT - CustomsRefund of Customs Duty paid under protest - classification of imported goods - fibre optic cable (DWSM & OPGW) - refund claim of the respondent denied on the ground that the claimant has failed to satisfy the test of unjust enrichment - HELD THAT:- It is a fact on record that the assessee could only indicate the amount shown as receivables, as informed to them by the Department, the respondent has also indicated the same in the accounts as receivables, once they were informed of the test results and for which reasons they had paid the duty at the first instance only under protest. Once certain about the leviability of the imported goods at nil rate of duty, as informed to them by the Department, the respondent has also indicated the same in their books of account. Since the refund amount was contingent upon the outcome of the test report, it is very obvious that the said amount could not be reflected as receivables then and there. It is also noted that in case of M/S. SAVITA OIL TECHNOLOGIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, BELAPUR [2016 (12) TMI 1222 - CESTAT MUMBAI] wherein the co- ordinate bench of this Tribunal had held that when the amount actually paid does not lead to obvious conclusion that the burden of duty has been passed on, the date of recording of the said amount in the Books of Accounts is irrelevant. Even otherwise, mere accounting is not conclusive proof that the burden of duty has been passed on and has to be empirically justified. There is no infirmity in the order-in-appeal passed by the ld.Commissioner (Appeals). Accordingly, the appeal filed by the Department is without merit - Appeal dismissed.
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