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2016 (3) TMI 337 - CESTAT MUMBAI

2016 (3) TMI 337 - CESTAT MUMBAI - 2015 (330) E.L.T. 321 (Tri. - Mumbai) - Eligibility of Refund claim - Unjust Enrichment on the basis of Balance-sheet & C.A. certificate - Held that:- the amount has been shown as reimbursible in the balance-sheet which is certified by the C.A. Also it is demonstrable that as per the calculation given in C.A certificate, wherein from the sale consideration, the appellant have cut the amount of excess duty recovered, after recovery of cost as per the original de .....

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Anil Choudhary, Member (J) Shri Anil Balani, Advocate, for the Appellant. Shri S.J. Sahoo, Assistant Commissioner (AR), for the Respondent. ORDER The appellant is in appeal against the impugned Order-in-Appeal No. 11(CRC-IV)/2012(JNCH)/IMP-09, dated 31-1-2012 passed by the Commissioner of Customs (Appeals), JNCH, Mumbai-II by which the refund claim of excess duty paid has been rejected on the ground of unjust enrichment. 2. The brief facts are that one Mr. Naresh Jogani, proprietor of M/s. .....

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the Order-in-Appeal dated 26-10-2007 set aside the enhancement of value and accepted the declared value. Thereafter, the appellant preferred refund claim, which was rejected on the ground of unjust enrichment. After some rounds of litigation, this Tribunal vide final order dated 6-10-2010 held that the Commissioner of Customs (Appeals) failed to look into the issue of unjust enrichment on the basis of Balance-sheet and C.A. certificate. Further, it was observed that the learned Commissioner (Ap .....

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to various customers. However, it is completely silent as to the price at which the transferred goods were sold by M/s. Karan Associates to their customers. During the hearing, the appellant referred to the copy of the stock ledger for the period 1-4-2004 to 31-3-2005 of M/s. Karan Associates to correlate the stock transfer from M/s. Veva International with the subsequent sale by M/s. Karan Associates. The following two entries were correlated by the appellant. KARAN ASSOCIATES Stock Ledger for .....

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from the above that the goods received @ ₹ 2.27 from M/s. Veva International were sold to M/s. Jenson Sales @ ₹ 5. The bill No. KA/99/2004, dated 16-11-2004 raised on M/s Jemson Sales Corpn confirms the above. It reads as follows : - M/s Jemson Sales Corporation 24, Devidayal Trust Bldg., 2nd Floor, 26, Kennedy Bridge, Bombay - 400 004 Bill No. KA/99/2004 dated 16-11-2004 Sr. No. Particulars Quantity Rate Amount ICL 7107 CPL 9160 5.00 45800.00 B.S. Tax Payable 1832.00 It is clear fro .....

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ld that incidence of duty was not passed on to the buyer just because there was a stock transfer by M/s. Veva International to M/s. Karan Associates before the sale of the goods to independent buyer. 11. The appellant has filed Chartered Accountant s Certificate stating that the amount of refund was still being shown as outstanding in his balance sheet. In this regard, it is observed that Hon ble Madras High Court in the case of Commissioner of Customs (Export), Chennai v. BPL Ltd. - 2010 ( .....

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i) has held that any certificate of Chartered Accountant would not be a substitute for sale invoice, which is a document expressly recognized under Section 28C. As already discussed in the foregoing paras, there are invoices to prove that the appellant has sold the goods at much higher prices than the price at which the goods were imported. Therefore, the impugned Order-in-Original No. 403/2007, dated 19-6-2007 is justified and sustainable on facts and appeal is devoid of any merit. Being aggrie .....

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g with duty the value per unit came to ₹ 5.33 and not ₹ 2.27 as considered value by the learned Commissioner (Appeals). The learned Counsel has produced a copy of calculation duly certified by the C.A., wherein the calculation has been given with the total sales as per the sale bills comes to ₹ 1,62,750/- for which cost of the consignment - as per original duty assessment of ₹ 16,534/- is ₹ 1,24,930/-, recovery above cost comes to ₹ 37,820/-. From their normal .....

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e-sheet on the asset side being certified by the C.A. 3.1 The learned Counsel further argues that in view of the clear position obtaining in the Books of Account, wherein the amount is appearing as recoverable and have not been collected from any buyer of the goods and the appellant have suo motu forgone the amount of ₹ 11,780/- towards purported recovery after reducing the amount of normal gross profit. It is further urged that the learned Commissioner (Appeals) is in error in observ .....

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e of Commissioner of Customs (Export), Chennai v. BPL Ltd. - 2010 (259) E.L.T. 526 (Mad.), wherein it was held that C.A. certificate is merely a piece of evidence acknowledging the facts and it is not sufficient to show that the duty burden has not been passed on to any other person. 4. The learned AR relies on the impugned order and further has taken me to para 3 of the impugned order where the learned Commissioner (Appeals) has recorded that the personal hearing was fixed on 4-10-2011. Sh .....

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ued to Jenson Sales Corporation etc. are referred and accordingly, it is urged that the appellant have failed to produce the same bill and as such, the appellant have not discharged the burden of unjust enrichment. The learned AR has relied on the following case laws : - (i) India Agencies v. Commissioner of Customs, Chennai - 2007 (212) E.L.T. 507 (Tri.-Chennai). (ii) GAIL India Ltd. v. Commissioner of Central Excise, Gwalior - 2011 (264) E.L.T. 393 (Tri.-Del.) (iii) Commissioner of Customs (Ex .....

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