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2016 (2) TMI 650 - CESTAT AHMEDABAD

2016 (2) TMI 650 - CESTAT AHMEDABAD - 2016 (344) E.L.T. 534 (Tri. - Ahmd.) - Recovery of refund - refund alleged to have been erroneously paid to the appellants, on the ground that the appellants have not satisfied that they have not passed on the incidence of duty - Held that:- 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 accounts. It is also certified that the said .....

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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 appellants have not satisfied that they have not passed on the incidence of duty and therefore, they a .....

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. However, in this case the claimant imported seamless steel tubes of 317 mm (Outer Diameter) and safeguard duty was paid erroneously. On verification of bill of entry, it was found that system has taken safeguard duty @ 20% with other duty. The claimant paid total duty ₹ 81,76,002/- instead of actual duty after re-assessment, payable as ₹ 45,72,063/- which resulted in excess payment of duty of ₹ 36,03,939/-. The claimant filed a refund claim for excess duty of ₹ 36,06,93 .....

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ustoms 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 claiman .....

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s 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 ₹ 4572063/-. Hence excess payment of ₹ 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 excess duty paid i.e. ₹ 3603939/- to any other person and a declaratio .....

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t passed by the importer to the buyer or any person and as such the question of unjust enrichment does not arise and the 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 .....

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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 .....

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nts as a part of the paper book with the present appeal. It is also observed that the Chartered Accountant, P F Chhajed & Co., has furnished the Chartered Accountants Certificate dated September 22, 2014 which, interalia, states; We further certify that Rama Cylinders Private Limited have not availed any duty drawback nor availed CENVAT credit in respect of payment of safeguard duty of ₹ 36,03,939/- (included in total duty payment of ₹ 81,76,002/-) We also certify that Rama Cylin .....

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