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Shyam Texolene Pvt. Ltd. Versus Commissioner of Cus. (Import) , Mumbai

2015 (6) TMI 997 - CESTAT MUMBAI

Refund claim - Rejected on Unjust Enrichment - 1% National Calamity Contingent Duty paid by mistake by way of draft - Held that:- once the amount is shown as recoverable, it is not material, in Balance-sheet, under which head it is classified. Also, if the amount is shown as receivable or recoverable from the Customs Department, then the question of unjust enrichment does not arise. Here, as the appellant being a manufacturer of fabric, there is no reason to examine its sales invoices etc. There .....

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ion 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 below : - DETAILED DUTY CALCULATION, CLAIM FOR EXCESS CUSTOMS DUTY PAID CALCULATION OF TOTAL DUTY ACTUALLY PAID PARTICULARS RATE DUTY AMOUNT TOTAL DUTY AMT. (Rs.) BE No. 335 .....

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H E C (CUS) 1% 1155 1155 4% SPL CVD 4% 54268 54268 TOTAL (B) 173170 173170 EXCESS DUTY PAID (A) - (B) ON WHICH REFUND IS CLAIMED 14,495 3. The appellants are manufacturer of Textile fabrics. They imported 100% polyester filament yarn (PFY) vide Bill of Entry and cleared the same on payment of duty. The total duty paid includes NCCD ₹ 12,947/- which was wrongly paid by the claimant. Subsequently, the appellant filed a refund claim of the amount wrongly deposited. Although, the adjudica .....

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hat the duty paying challan shows the duty paid on 3-4-2009, and the same is shown in the balance sheet as on 31-3-2009, which appeared to be not correct. Further anomaly noticed was that the amount of refund claim was shown under the head, investment & other, in the Balance Sheet, which means the same is added in the costing, the amount should have been shown under the head Loans and Advances . Further, the appellant has not filed the Balance Sheet as on 31-3-2010. It was further observed t .....

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ained. 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 learned Counsel for the appellant urges that so far the controversy regarding the date of duty payment is concerned, it is claimed, that the demand draft/pay order purchased on 31-3-2009 and the same was accounted for .....

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fication of the amount in the balance-sheet for the presentation purpose is not a deciding factor. The deciding factor is that the appellant has shown the amount as recoverable, which is not disputed and as such the rejection of refund on this ground is bad. It is further urged that the appellant has filed C.A. certificate a copy of which have been annexed in the appeal paper book at page 83, which states that- As required for examination of the principle of unjust enrichment in the case before .....

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