TMI Blog2012 (11) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... higher than the cost of finished goods. However, the cost itself shows that the value of materials consumed was Rs. 4.10 Crores and other costs have to be added. Only when the material imported is sold as such, the method adopted by the Commissioner can be acceptable. In a case like this, where raw material have been used for manufacture, what is required to be seen is the total cost incurred for the finished goods and not the difference between the cost of raw material and the price of finished goods without taking other expenses/raw materials/ inputs into account. Therefore, the method adopted by the learned Commissioner to reject the cost certificate cannot be sustained. The cost certificate clearly shows that the appellant's realisation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UOI reported in 1992 (57) ELT 201. The matter was carried to the Hon'ble Supreme Court by the department. By that time, the judgment of the Hon'ble High Court of Mumbai in the case of Solar Pesticides (supra) was reversed by the Hon'ble Supreme Court as reported in 2000 (116) ELT 401 (SC) wherein it was held that the said doctrine of unjust enrichment is to be examined even in cases where the imported goods are used for captive consumption. Accordingly, the Hon'ble Supreme Court remanded this matter to the Tribunal vide order dated 27.11.2000 in Civil Appeal No. 5869 of 2000. The CESTAT, in turn vide order NO. C-II/986 dated 23.03.2004 remanded the matter to the Assistant Commissioner for deciding whether the burden of duty has not been pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or disputed that they had used the raw material in the trial run in Nov 1990 even though importation had taken place in March 1990 itself. In the show cause notice issued to the appellants on 18.02.2005, appellants were informed that invoices for the month of December 1990 attached by them to the refund claim was not sufficient and appellant have to produce invoices relating to two months namely, for one month before the import and one month after the import. The purpose indicated in the show cause notice was obviously to compare the change in price of the raw material. Thereafter, the appellants submitted these documents and the original adjudicating authority took the view that there was a marginal increase of 50 Paisa between April and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,04,743.00 1,041.09 Power Fuel 21,35,339.00 4,404.39 Stores consumables other expenses 1,65,94,748.00 34,228.61 Packing Material 22,93,004.00 4,729.59 Freight 5,79,824.00 1.195.95 Cost of Production 6,31,23,761.00 1,30,200.14 Excise duty 4,73,53,025.00 Sales Tax 2,87,167.00 Cost of sale 11,07,63,953.00 Sale proceeds (including excise duty and sales tax) 6,63,84,182.00 Less : Excise duty Sales tax 4,76,40,192.00 Net Realisation 1,87,43,990.00 38,661.67 Net Loss 4,43,79,772.00 This certificate has been rejected by the Commissioner on the ground that loss suffered had been capitalised and therefore, it can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otal cost incurred for the finished goods and not the difference between the cost of raw material and the price of finished goods without taking other expenses/raw materials/ inputs into account. Therefore, the method adopted by the learned Commissioner to reject the cost certificate cannot be sustained. The cost certificate clearly shows that the appellant s realisation from POY was less than the cost incurred by them for manufacture and therefore, it cannot be said that they have passed on the duty liability to the customers. 8. The appellants had also produced the another Cost Accountant s certificate which has also not been considered. The certificate is reproduced below:- To Whom It May Concern In respect of M/s. DCL POLYESTE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er material used. Place : Nagpur For S.K. Pathak Co. Dated 28/03/2000 Cost Accountant Sd/- Proprietor This certificate also clearly shows that appellants have not made any profit and in fact have incurred loss. 9. Having regard to the facts and circumstances and the discussions above and submissions made and after considering the impugned orders, the conclusion we reached is that appellants have been able to show that they have not passed on the customs duty liability to the customers and therefore, are eligible for refund. 10. The matter is remanded to the original adjudicating authority to consider the refund claim afresh and make the payment of eligible amount of refund keeping the direction in our order that in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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