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2016 (1) TMI 385 - CESTAT MUMBAI

2016 (1) TMI 385 - CESTAT MUMBAI - TMI - Benefit of Notification No.6/2003-CE dated 01/03/2003 - 100% EOU - DTA Clearances - Denial of refund claim - Unjust enrichment - Held that:- Respondent filed refund claim with the lower authorities for sanctioning the refund of the amount which was paid during the proceedings. The adjudicating authority rejected the refund claim on the ground that the documents which were furnished are not sufficient and they have not passed on the incidence of duty to an .....

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the CVD payable is as per tariff rate. We find that as regards the discharge of CVD, we held that CVD has been correctly discharged @ ₹ 30/- per Sq. Mtr. Hence, on this point, there cannot be any dispute.

First appellate authority has categorically recorded that invoices raised by the respondent indicate only discharge of Central Excise duty as per Notification No.6/2003-CE and the amount deposited were subsequent to the clearances made by them. On perusal of the records, we fi .....

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(AR) For the Respondent : Shri.Rajesh Ostwal, Advocate ORDER Per: M.V. Ravindran 1. These two appeals are filed by the Revenue against Order-in-Appeal No.PII/BKS/259/2005 dated 30/05/2005 & PII/BKS/344/2005 dated 13/09/2005 passed by Commissioner of Central Excise (Appeals), Pune. Since both the appeals are interconnected, they are being disposed of by a common order. 2. Heard both sides and perused the records. 3. The appeal No.E/3284/05 is filed by the Revenue against the impugned order o .....

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manufacturer of granite and marble slabs and cleared the same to DTA as per the provisions and discharged CVD @ ₹ 30/- per Sq. Mtr., which was the effective rate under Notification No.6/2003-CE dated 01/03/2003 while it is the case of the Revenue that being an EOU the respondent is required to discharge the CVD at tariff rate, i.e. 16% advalorem. The adjudicating authority dropped the proceedings initiated by show-cause notice by relying upon the various case laws. Aggrieved by such an or .....

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d which we do so. I have carefully gone through the case records and the various submissions made by the appellants. The issue in the present appeal is whether the refund claim is hit by the doctrine of unjust enrichment or not. In the instant case department contended that duty paid can very well be recovered subsequently by issuing supplementary invoices and/or debit notes and hence took the stand that unjust enrichment is applicable even if the duty is not shown on th invoices at the time of .....

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fferential CVD calculated @16%. Departments contention that appellant might have issued subsequent invoices or debit notes and hence the bar of unjust enrichment is applicable cannot be a ground without any evidence. Further I find that the appellants have produced a CA certificate stating that they have not recovered/claimed the amount of ₹ 36,00.934/- from the customers. The appellants have also produced letters from their customers who have certified that they have paid the CVD amount .....

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y evidence to show that the incidence of duty has not been passed on to the customers. Also the adjudicating authority has mentioned about the accounting treatment given to duty paid as expenditure and not as receivable and observed that hence there is chance of it being passed on indirectly. In this regard, I find that Tribunal in the case of Sunbeam Auto Ltd. Vs. CCE (2005 (67) RLT 291) has held that principles of unjust enrichment is not applicable since the amount was kept in account as sale .....

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d that the Apex Court has maintained the judgement of the Gujarat High Court and the Delhi High Court, hence nothing survives in this matter, the same has been taken by the Tribunal in the case of CCE Hyderabad Vs. Shanta Biotechnics Ltd. - 2010 (259) ELT 447 (Tri-Bang). 6. In view of the factual findings as recorded by both the lower authorities and the authoritative to judicial pronouncements, we find that the impugned order in this appeal is correct and legal and does not suffer from any infi .....

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late authority reversed the order-in-original and held that the appellant has produced various documents before him and that he has not passed on the incidence of duty to their clients. Holding so he allowed the appeal filed by the respondent with direction to the lower authorities to refund the amount to the respondent. The Revenues case is that the appellant had not passed the hurdle of unjust enrichment and has not provided any documents as also that the CVD payable is as per tariff rate. We .....

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