TMI Blog2016 (2) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... t enrichment has not been violated. The appellants are clearly eligible for the refund of the excess payment of duty. - Demand set aside - Decided in favor of assessee. - Appeal No. C/11827/2015 - ORDER No. A/10097 / 2016 - Dated:- 16-2-2016 - Mr. P. M. Saleem, Hon'ble Member (Technical) For the Appellant : Shri R. Subramanya, Advocate For the Respondent : Shri S. K. Shukla, Authorised Representative ORDER Per : Mr. P. M. Saleem The appellants herein M/s. Rama Cylinders Pvt Ltd. Kutch, Gujarat, are before us aggrieved by the impugned order of Commissioner (Appeals) in which he ordered recovery of refund of ₹ 36,03,939/-, alleged to have been erroneously paid to the appellants, on the ground that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson hence the question of unjust enrichment does not arise and the same is outstanding for refund from customs Department under the head of Customs duty receivables. 3. Revenue filed appeal with Commissioner (Appeals) aggrieved by the said order of the adjudicating authority. Commissioner (Appeals) ordered recovery of the refund amount vide the impugned order-in-appeal. 4. Heard both sides. The Learned Counsel for the appellants takes us through the findings of the Adjudicating Authority in the impugned order-in-original dated 27.11.2014, relevant portion of which is reproduced below:- The claimant has filed B/E No. 6687787 dated 08.09.2014 for 274.590 MT, which was assessed by EDI system in RMS and duty for the same paid on 09. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same is outstanding for refund from Customs Department under the head of Custom duty receivable. 5. The Learned Counsel further submits that the subject goods were taken to their factory and consumed therein in the manufacture of their final goods namely, High Pressure Cylinders. He argues that therefore there is no question of passing of the incidence of the duty. He further submits that Re-assessment of Bill of Entry was done within a day of the date of initial wrong assessment. They have also not taken the higher duty element into the cost of final goods as certified by the Chartered Accountant. He relied upon the decision of the Tribunal in the case of Bilcare Ltd. vs. Commissioner of Customs, Pune 2014 (308) E.L.T. 166 (Tri.-Mumba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of payment of safeguard duty of ₹ 36,03,939/- (included in total duty payment of ₹ 81,76,002/-) We also certify that Rama Cylinders Private Limited have not passed on the incidence of above duty to buyer or any other person and the said amount is shown as Safeguard duty refund receivable under the head Current Assets . The said safeguard duty has not been charged to Profit and Loss account and therefore the same is not forming part of the cost of goods sold and hence the burden is not being passed on to the buyer or any other person. 8. It is thus clear that the Re-assessment was done immediately and also that the appellants had shown the excess payment of safeguard duty as refund receivable in their books of account ..... X X X X Extracts X X X X X X X X Extracts X X X X
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