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2016 (6) TMI 406 - CESTAT MUMBAI

2016 (6) TMI 406 - CESTAT MUMBAI - TMI - Refund claim in respect of the levy of compounded duty disputed - Discharge the burden of unjust enrichment - Held that:- C.A. certificate does not help the appellants. Under the Compounded Levy Scheme, the invoices do not show the duty element. The duty is calculated on the basis of number of machines installed and the duty element is recovered by the assessee as part of the cost of production. There is no separate entry with respect to the duty amount i .....

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If the amount has been shown as expenditure in the Profit and Loss account, it amounts to passing of the incidence of duty to the customers. Unjust enrichment is a question of fact and the said order does not disclose as to what was the nature of document which was produced and why the burden cast on the assessee was discharged by them. Thus find that the appellant has not been able to discharge the burden of unjust enrichment raised by the Revenue - Appeal No. E/440/11 - Dated:- 3-6-2016 .....

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t of the levy of compounded duty disputed by them. The refund claim was sanctioned, however, as the appellant failed to establish that they had not passed on burden to the buyers, the same were credited to the Consumer Welfare Fund. Their appeal before Commissioner (Appeals) was also dismissed. Aggrieved by the said order, the appellants are in appeal before Tribunal. 2. Learned Counsel for the appellant argued that the duty was paid for the period 16.12.1998 to 30.09.1999 on 30.03.2000. He argu .....

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cumstances where another similar placed assessee was granted relief. Learned Counsel for the appellant also relied on the Profit and Loss statement, wherein he claimed that the said amount of refund has been shown as a loss. 3. Learned AR relied on the decision of Hon'ble Supreme Court in the case of Birla Corporation Ltd. 2007 (208) ELT 481 (SC) to assert that even when duty was paid under protest, the provisions of unjust enrichment would be applicable. He also relied on decision of the Tr .....

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itted by the appellants to discharge the burden of unjust enrichment are (i) C.A. Certificate & (ii) The Profit and Loss Statement. I find that the C.A. Certificate reads as follows: - I, Mr. R.G. Menon & Co., hereby confirm that the above claims of ₹ 10,83,000/-is on the basis of refund eligible to my client M/s Valson Dyeing Bleaching & Printing Works having its office at Lal Bahadur Shastri Marg, Opp. Dreams Mall, Bhandup (West), Mumbai 400 078. The books of accounts and oth .....

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t the above C.A. certificate does not help the appellants. Under the Compounded Levy Scheme, the invoices do not show the duty element. The duty is calculated on the basis of number of machines installed and the duty element is recovered by the assessee as part of the cost of production. There is no separate entry with respect to the duty amount in the invoices. The certificate of C.A. states that the above mentioned firm had made the payments as per the demand raised by the Government Departmen .....

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on Chamber Duty ₹ 2,967,439.00. I find that the said entry is for amount ₹ 29,67,439/- whereas the amount of refund claimed is ₹ 10,83,000/-. When the learned Counsel was asked, he could not clarify as to how the two entries are for the same transaction. Even if it is presumed that this entry relates to the refund claim, it is seen that the same has been charged to the Profit & Loss account and has been charged as expenditure. If the same has been charged as expenditure, i .....

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