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2023 (1) TMI 111 - AT - CustomsRejection of refund claim - failure to show that the burden of duty has not been passed on to the respective buyers - principles of unjust enrichment - HELD THAT:- The amount of Rs.1,08,54,152/- was the amount deposited by the appellant pursuant to the confirmation of differential duty demand. The moment, the said demand was set aside by this Tribunal, the amount deposit with the department was not the amount of duty but was the revenue deposit to which the assessee/respondent was entitled for the refund. There is no dispute to this fact even by the original adjudicating authority. Major amount of the refund claim i.e. Rs.97,58,928/- out of Rs.1,08,54,152/- was sanctioned by the original adjudicating authority itself. The rejection for the balance amount has been re-adjudicated by Commissioner (Appeals) vide the order under challenge who while appreciating the C.A. Certificate and audited balance sheets produced by the assessee/respondent has concluded that there is no evidence to show that the burden of differential duty has been passed by the respondent to the prospective buyers. The Mumbai Bench of this Tribunal in another case of COMMISSIONER OF C. EX., PUNE-I VERSUS DGP HONODAY INDUSTRIES LTD. [2014 (5) TMI 1096 - CESTAT MUMBAI] has also held that where the assessee/respondent through the certificate issued by Chartered Accountant and the Balance Sheet have shown that the amount in question is receivable from the department. The bar of unjust enrichment cannot be applied upon such assessee - there are no reason to differ with these findings, specifically for the reason that there is no documentary evidence on record to falsify the Chartered Accountant Certificate. The observations of review order are therefore opined to be the result of mere presumption and surmises. The department’s appeal stands dismissed.
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