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2005 (7) TMI 124 - AT - Central ExciseRefund claims - duty payments - Maintainability of - Unjust enrichment - HR Coils - classification under Heading 73.08 - verification of original documents - Whether the assessee has passed on the incidence of duty element paid on the consignment in question to any other person by adding the cost of excess duty element, while calculating the cost of their final products - HELD THAT:- In any case, on the 11 exbond BE's, no orders on assessment, afresh are were required, on plain reading of Section 68 of the Customs Act 1962, governing exbond BEs. The question of no challenge to the assessments on these 11 BEs was not relevant & or called for. There can be no appeal against these BEs since there is no order of assessment required to be effected on such BE filed u/s 68 of the Customs Act, 1962. Assessment orders were to be arrived at on into Brand BEs as provided for u/s 17 the Customs Act, 1962 the question No. (3) framed by the original authority in his order, is not called for & decision thereon is not as per law. The non submission of original TR6, as per question No. 2 framed, & finding arrived, of the same having been submitted to be not satisfactory cannot be upheld. The duty payments of the same could be verified from the other proceedings documents filed with the department. In any ease, refunds, if otherwise eligible, cannot be refused for non supply of original TR-6. A procedure of indemnity Bonds is prescribed for such cases. The appellants Balance sheet for the year 30-6-84 shows the claim for amount of Rs. 41,32,530/- towards excess Customs duty paid. Certificates of Chartered Accountant dated 26-10-2002 indicate that this amount in question was not claimed as expense by this manufacturer importer to be included in the costing of the tubes manufactured & sold. Therefore the expense has been incurred by the importer and borne by him and cannot be said to have been passed on expenses in manufactured goods sold. Affidavits of Jt. President of the assessee company were produced to claim that the excess duty paid was not passed on to the Customer. The lower authorities reliance on M/s. Solar Pesticides case [2000 (2) TMI 237 - SUPREME COURT] is therefore not to be upheld, since this material would entitle the conclusion that the burden was not passed on. The bar of unjust enrichment is rebuttable presumption and has been effectively rebutted. The lower authorities rejection of CAs certificate on ground of not supported by Cost Certificates for the final products & therefore not accepted cannot be upheld. The Costs Certificates could be sought for and obtained. Rejecting the CAs certificate lightly without any evidence cannot be upheld. The reliance placed by the Revenue on the case of CC v. ELTECH Enterprises [1998 (2) TMI 349 - CEGAT, MUMBAI] will not be applicable as the same was a decision based only on Chartered Accountants certificate Present case is on facts of the amounts claimed as excess duty paid shown as balance and not used in cost of manufacture. In the present case the ratio of that case cannot be applied. If the department wants to not to rely on the CA's certificate, they can get their Cost Accountant appointed & get the costing verified. We cannot upheld the rejection of the refund the reasons as arrived. Thus, we would set aside the order & remit the matter back to the original authority to redetermine the refund amount & the interest due thereon & pass an order after hearing the appellants, pay the amounts as an Indemnity Bond, if required. Appeal to be allowed as remand to Dy. Commissioner for de novo determination in above terms. Appeals allowed in above terms.
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