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2016 (1) TMI 420 - CESTAT MUMBAI

2016 (1) TMI 420 - CESTAT MUMBAI - 2015 (324) E.L.T. 196 (Tri. - Mumbai) - Claim of refund of excess interest paid on demand of duty due to shortfall in export obligation - unjust enrichment - Held that:- the appellant had filed C.A. certificate before the lower authority to the effect that the amount of excess paid interest have not been passed on and the same stands recoverable in the Books of Account of the appellant. Further, the appellant have produced a copy of Balance sheet along with cer .....

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posit. - refund allowed - Decided in favor of assessee. - C/760/2008-Mum - Final Order No. A/1948/2015-WZB(SMB) - Dated:- 23-6-2015 - Shri Anil Choudhary, Member (J) Shri Paresh M. Joshi, Advocate, for the Appellant. Shri S.J. Sahu, Assistant Commissioner (AR), for the Respondent. ORDER The appellant is in appeal against Order-in-Appeal No. 132(CRC)/2008(JNCH), dated 31-3-2008 passed by the Commissioner of Customs (Appeals), Mumbai-II by which the Order-in-Original was upheld rejecting the refun .....

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gainst the said license. Accordingly, the DGFT vide letter dated 9-12-2004 directed the appellant to pay customs duty with interest for the shortfall of export obligation. The appellant calculated the interest payable @ 24% instead of 15% as provided in para 5.14 of Handbook of Procedures and thus, they have deposited an excess amount of ₹ 11,97,763/-. The appellant made an application for refund of amount of excess interest paid, on the duty, but the same was not disbursed and credited to .....

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al in the case of Rupesh Chemicals - 2006 (146) E.L.T. 164 (Tri-Bang) (sic), wherein it has been held that the excess payment due to arithmetical error was not to be considered as duty and that unjust enrichment provision will not be applicable. The learned Commissioner further observed that in the present case, amount claimed as refund, was not the result of a simple arithmetical error but had arisen due to application of wrong rates while computing the interest amount. It was further observed .....

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t had not produced any other authenticated documents such as audited Balance Sheet or Profit & Loss Account, showing the excess amount paid by them as recoverable or receivable . 3. Being aggrieved, the appellant is in appeal before this Tribunal. 4. The learned Counsel for the appellant urges that during the pendency before the Commissioner (Appeals) and before the adjudicating authority, there was ongoing dispute between majority and minority share holder. The matter was pending .....

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Further, the learned Counsel have filed a copy of the audited Balance sheet as on 31-3-2007 wherein under the Head Loan & Advances head an amount of ₹ 11,97,763/- has been shown as recoverable from the Customs on account of additional/excess interest paid. The appellant have also filed a certificate of C.A. dated 17-1-2014 certifying that the said amount is outstanding, shown as recoverable from the Customs Department and the amount is included under Head Deposit with others in 2006-0 .....

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w of the settled law, the excess payment of interest does not form part of duty and as such, the provision of unjust enrichment is not attracted. As such, he prays for allowing the appeal. 5. The learned AR relies on the impugned order. He further states that in the Bond, rate of interest is normally mentioned as 24% and as such the appellant have rightly paid the interest @ 24% and there is no case of excess payment of interest. Learned DR also relies on the ruling relied upon in the impug .....

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