TMI Blog2014 (2) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... accounted the depreciation of duty paid (though it was not payable) can only reflect on his profitability and it cannot be taken as a proof that he has passed on the incidence to the foreign buyer - Following decision of Design Classics Exports (P) Ltd. Vs CC Chennai [2004 (7) TMI 140 - CESTAT, CHENNAI], Golden Iron & Steel Forgings Vs CC Mumbai [2003 (2) TMI 119 - CEGAT, NEW DELHI] and Bharti Sons Vs CC Amritsar [2009 (7) TMI 1040 - CESTAT NEW DELHI] - Decided against Revenue. - Appeal No. C/225/2005 & C/CO/42044/2013 - FINAL ORDER No.40607/2013 - Dated:- 29-11-2013 - Shri Mathew John, J. For the Appellant: Ms. Indira Sisupal, AC (AR) For the Respondent: Shri G. Shiva Dass, Advocate JUDGEMENT 1. This is the second round ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act. So he sanctioned the amount and credited it to Consumer Welfare Fund. Aggrieved by the decision of the Asst. Commissioner, the respondent filed an appeal with the Commissioner (Appeals). Commissioner (Appeals) held that there was no unjust enrichment involved and the refund should be paid to the respondent. Aggrieved by the order, Revenue had filed this present appeal with the Tribunal. 4. The reason given by the adjudicating authority was that the duty paid at the time of clearance of the machinery was included in the balance sheet of the respondent and capitalized and depreciation on the duty component had been claimed and therefore the adjudicating authority came to the conclusion that duty paid would become part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its this is more evident as JDGFT, Mumbai has issued redemption certificate on 3.9.2003 for completion of export obligation in respect of the EPCG Licence. As regards the inclusion of duty in their cost of plant and machinery the appellants contend that it cannot be equated to the fact of the incidence of duty had been passed on to the consumer ultimately. There ought to be some independent, corroborative evidence to sustain the same. In absence of such, the appellant cannot be saddled with the concept of unjust enrichment. It is like taking into consideration an irrelevant and extraneous material to arrive at the conclusion that incidence of duty has been passed on. In this aspect, the Lower Authority failed to consider the redemption cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is very obvious that the cost was passed on to others. She points out that these amounts were not shown as "receivables" in the balance sheet of the respondent. Therefore, she submits that the order of the Commissioner (Appeals) is not legal and proper and the adjudication order should be restored. 7. Arguing for the respondent, the learned advocate submits that the decision in the case of Bussa Overseas (Supra) is only to the effect that every refund claim should pass through a test to ensure that there is no unjust enrichment due to refund. The decision was in the context whether the test will apply in the case of provisional assessments. He is not disputing the principle laid down in the decision. He is only contesting that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be applicable to capital goods which are on a different footing as compared to raw materials dealt with in the decision. ii) Golden Iron Steel Forgings Vs CC Mumbai -2003 (157) ELT 650 (Tri.-Del.) In this case the issue of applicability of the principle of unjust enrichment to goods captively consumed and used in the manufacture of goods exported was examined and held that no unjust enrichment is involved in such situation. iii) Bharti Sons Vs CC Amritsar-2009 (248)- ELT 457 (Tri.-Del.). This is a case involving EPCG license and the decision is to the effect that no unjust enrichment is involved while refunding duty paid on capital goods to a manufacturer doing manufacturing activity for export. 8. I have considered the submis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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