TMI Blog2015 (6) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... 1820/2015-WZB/SMB - Dated:- 11-6-2015 - Shri Anil Choudhary, Member (J) Shri V. Rama Rao, Advocate, for the Appellant. Shri M.S. Reddy, DC (AR), for the Respondent. ORDER The appellants are in appeal against Orders-in-Appeal No. 437/MCH/AC/CFS/(M)(I)/2012, dated 1-8-2012 and No. 439/MCH/AC/CFS/ (M)(I)/2012, dated 1-8-2012 passed by the Commissioner of Customs (Appeals), Mumbai-I, whereby the rejection of the refund claim have been upheld in the present appeals on the ground of unjust enrichment. 2. As the facts are common, relating to refund of 1% National Calamity Contingent Duty (NCCD) deposited by mistake, both the appeals are taken up together for consideration and disposal. The details of duty paid are given be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NCCD 1% 0 0 CVD 4% 51988 51988 ED CESS (CVD) 2% 1040 104P S H E C (CVD) 1% 520 520 ED CESS (CUS) 2% 2309 2309 S H E C (CUS) 1% 1155 1155 4% SPL CVD 4% 54268 54268 TOTAL (B) 173170 173170 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not mean that it has not been recovered from the customers. It was further observed that it is necessary that the cost and pricing of goods sold must be examined to be determined whether such amount is collected from another person. As the appellant have not submitted any sale invoice for import of PFY, the adjudicating authority was of the view that in absence of sale invoice, the claim of not passing the burden of duty to any other person cannot be sustained. 3.1 Being aggrieved, the appellant had preferred appeal before the Commissioner (Appeals), who vide the impugned order has rejected the appeal upholding the findings in the adjudication order. Being aggrieved, the appellant is in appeal before this Tribunal. 4. The learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st enrichment. 5. The learned AR relies on the impugned order. 6. Having considered the rival contentions, I find that neither the Balance Sheet dated 31-3-2010 was seen by the adjudicating authority nor the same was produced by the appellant, which is a material document as the amount claimed refundable (NCCD) was admittedly paid by way of draft purchased on 31-3-2009 deposited on 3-4-2009 and as such examination of the said amount being shown as recoverable and or receivable, the balance sheet dated 31-3-2010 is important. In absence of examination of the Balance Sheet as on 31-3-2010, the Court below have erred in rejecting the refund on the ground of unjust enrichment. Hereby, I hold that once the amount is shown as recoverable, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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