TMI Blog2007 (5) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... eals are directed against denial of refund of excess customs duty paid on capital goods on the ground that the appellant failed to produce sufficient evidence to prove that the incidence of excess duty has not been passed on through product prices. Thus, there is no dispute that excess duty had been paid. The only issue is whether the amount should be credited to the Consumer Welfare Fund or paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant, it would be a case of Appellant not passing on the excess duty amount. In view of the CESTAT final order dated 23-3-2006/17-4-2006, I find that Hon ble CEGAT/CESTAT, has directed for two type of verification (i) If the duty paid in excess had been taken into account while determining fixed costs (ii) the same passed on through produce price. The verification of copy of Fixed Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Product Price . Accordingly, I hold that the doctrine of unjust enrichment is applicable accordingly, Rs. 168061/- credited to Consumer Welfare Fund as per the provisions vide Section 27(2) of the Customs Act, 1962 vide Impugned Order (i.e. Order-in-Original No. 5/2005 dated 10-5-2005 passed by AC Customs ICD Rajsico, Sanganer, Jaipur) is sustainable. The refund sanction vide refund order No. 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss duty amount was not forming part of the fixed cost, the question of its being passed on through product price does not arise. As regards, the sale of the gem stones manufactured by the appellant, the submission is that they are exported and their price is market driven and not based on costing. 4. Reference is also being made to the decision in the case of CC, Air Cargo Unit, New Delhi v. Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant had not included the excess duty in the capital cost, naturally, that amount does not get reflected in the product price at all. In this view of the matter, the appellant is right in its contention that the verification has established that the duty had not been passed on. The appellant s case is also supported by the decision of the Tribunal in the case of Maruti Udyog. 7. In the resu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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