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2016 (10) TMI 229 - CESTAT MUMBAI

2016 (10) TMI 229 - CESTAT MUMBAI - 2017 (345) E.L.T. 134 (Tri. - Mumbai) - Refund claim - unjust enrichment - duty on the element of equalized freight from the factory to the depots of the respondent - equalised freight not includable in the assessable value - Held that: - once the Tribunal has held that equalized freight amount needs to be excluded from the assessable value for discharge of duty liability, nothing survives in the matter. - The first appellate authority has held that the pr .....

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two appeals are filed by Revenue against order-in-appeal No. PII/BKS/127-128/2005 dated 28.2.2005. 2. Heard both sides and perused the records. 3. The issue involved in this case is regarding the refund claims filed by the appellant for the period April 2000 to July 2002 consequent to the order passed in favour of the respondent by order-in-appeal No. PII/BKS/233-234/2003 dated 5.8.2003. By the said order dated 5.8.2003, the Commissioner (Appeals) had held that duty is not payable on the element .....

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appeals on the ground that the appellant had produced Chartered Accountant s certificates which specifically mentioned that the incidence of duty has not been passed on and borne by the company and also placed reliance on the copy of the affidavit filed before him to the effect that the duty was paid on equalized freight under protest and the same has not been recovered. 4. The learned departmental representative would submit that the order-in-appeal dated 5.8.2003 was contested by the Revenue b .....

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tificates issued by the Chartered Accountant. He would submit that the judgment of the Hon ble Supreme Court in the case of CCE, Mumbai-II vs. Allied Photographics India Ltd. 2004 (166) ELT 3 (SC), will apply. 5. The learned counsel, on the other hand, would submit that the Chartered Accountant s certificates which were given were very clear and indicated that the appellant had not passed on the duty to anyone. 6. On consideration of the submissions made by both sides, we find that the impugned .....

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