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2015 (11) TMI 818 - CESTAT BANGALORE

2015 (11) TMI 818 - CESTAT BANGALORE - 2016 (344) E.L.T. 241 (Tri. - Bang.) - Denial of refund claim in terms of Notification No.102/2007-Cus. dated 14.9.2007 - Levy of additional duty of customs - Unjust enrichment - Held that:- As it is seen from the reproduced part of the Circular, a certificate by the Chartered Engineer certifying that the burden of CVD has not been passed on to the buyer and a self-declaration by the buyer is sufficient to establish that the duty burden has not been passed .....

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on of the accounts maintained by an assessee and is presumed to have been given after verification of the same. In terms of the Board’s Circular also such certificate if given by the Chartered Accountant would suffice - Impugned order is set aside - Decided in favour of assessee. - Appeal(s) Involved : C/23543/2014-DB - Final Order No. 21883 / 2015 - Dated:- 8-9-2015 - Smt. Archana Wadhwa, Judicial Member and Shri Ashok Kumar Arya, Technical Member For the Petitioner : Mr. V. M. Doiphode, Consul .....

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when imported into India for subsequent sale, from the whole of the additional duty of customs leviable thereon, subject to fulfillment of certain conditions. For better appreciation, we reproduce the Notification in question. Notification No.102/2007-Customs New Delhi, the 14th September, 2007 Special CVD Exemption to all goods when imported for subsequent sale In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on .....

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itions are fulfilled : (a) the importer of the said goods shall pay all duties, including the said additional duty of customs leviable thereon, as applicable, at the time of importation of the goods; (b) the importer, while issuing the invoice for sale of the said goods, shall specifically indicate in the invoice that in respect of the goods covered therein, no credit of the additional duty of customs levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible; .....

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h refund of the said additional duty is claimed; (iii) documents evidencing payment of appropriate sales tax or value added tax, as the case may be, by the importer, on sale of such imported goods. 3. The jurisdictional customs officer shall sanction the refund on satisfying himself that the conditions referred to in para 2 above, are fulfilled. The refund claims filed by the appellant were adjudicated by the original adjudicating authority. He concluded that inasmuch as the appellant has sold t .....

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h as the said certificate is silent as to how they have arrived at the conclusion that the sale value does not include the 4% additional duty of customs. Accordingly, he rejected the refund claims in question on the ground of unjust enrichment. 2. On an appeal filed by the assessee before Commissioner (A), he adopted an altogether different ground and observed that there was another Notification No.21/2012-Cus. dated 17.3.2012 vide which the imported goods were exempted unconditionally from paym .....

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rtered Engineer Certificate on the issue of unjust enrichment. Accordingly, he rejected the appeal. Hence the present appeal. 3. We have considered the submissions made by both the sides. Notification in question stands reproduced in the preceding paragraph. In terms of the said Notification, the importer, who imports the goods for the purpose of sale, is required to pay additional duty of customs and is entitled for refund of the same, subject to fulfillment of the conditions enumerated therein .....

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he imported items are otherwise exempted by any other Notification, the said Notification will not apply. 3.1 As regards the issue of unjust enrichment, our attention stands drawn to a Boards Circular being Circular No.6/2008-Cus. while clarifying on the point of unjust enrichment, it stands observed as under: 6. Unjust enrichment : 6.1 However, considering the voluminous transactions and the documents involved in the cycle, from import to sale, it was felt that it would be expedient to allow t .....

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