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TMI Blog2016 (2) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... llants have not satisfied that they have not passed on the incidence of duty and therefore, they are not eligible for the refund on the principle of unjust enrichment. 2. The brief facts of the case are as follows:- The Appellants filed a Bill of Entry No. 6687787 dated 08.09.2014 for clearance of 254.590 MT Seamless Steel Tubes of 317 mm. The bill of entry was assessed by EDI system in RMS and duty for the same was paid on 09.09.2014. As per Notification No. 02/2014-Customs (SG) dated 13.08.2014, safeguard duty @ 20% is payable on seamless steel tubes not exceeding 27301 mm (Outer Diameter). However, in this case the claimant imported seamless steel tubes of 317 mm (Outer Diameter) and safeguard duty was paid erroneously. On verification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09652006. On verification of B/E it is found that system has taken safe guard duty @ 20% with other duty. Total duty had been paid by Importer Rs. 8176002.00 instead of actual duty after re-assessed of B/e was Rs. 4572063.00, resulting excess payment of duty. Accordingly, on updating of system and after re-assessed from customs in the system on 16.09.2014 as per JC Order dated 16.09.2014 for correct Duty Rate as under:- Basic 10%+CVD 12% + Edu. Cess 2% + H. Sc. Edu. Cess 1% + sad 4% i.e. Total Duty Rs. 4572063/-. Hence excess payment of Rs. 3603939/- (i.e. 8176002.00 4572063.00/-) made by claimant as per below in table A. The Claimant has furnished a self-declaration along with the refund claim to the effect that he has not passed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Revenue submits that the appellant had not produced any supporting documents other than Chartered Accountant Certificate to prove that the incidence of duty has not been passed on. He draws the attention of Bench to the findings of the Commissioner (Appeals) in this regard. He further contents that even if the subject goods are consumed by the appellants in their factory in the manufacture of final goods, the duty incidence would be passed on, if the higher duty element is included in the cost of the final goods. 7. On careful consideration of the arguments of the both sides and on perusal of the records, we find that the Customs EDI system had assessed the subject Bill of Entry under RMS on 08.09.2014 and had taken safeguard duty @20% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... costing of the final products. Therefore, it is transparent that the excess duty has not been passed on and the principle of unjust enrichment has not been violated. The appellants are clearly eligible for the refund of the excess payment of duty. The Tribunal in the case of Bilcare Ltd. (supra) wherein exactly the same situation had arisen, the Tribunal held as follows:- "Further, I find that the appellant has been able to prove that the amount is recoverable from the Customs and he is able to produce the Chartered Accountant Certificate certifying that the amount of excess safeguard duty has not been formed the part of selling price of the goods. Therefore, the appellant has proved that the burden of duty is not passed on the buyer and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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