TMI Blog2017 (10) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 would show that the requirement is not mandatory. Clause9 only contains the list of enclosures which could be submitted along with refund application. Clause9 merely requires the applicant to tick mark against the documents showing that the said documents have been produced with refund application. By no stretch of imagination, it can be said that the requirement of production of documents listed in clause9 of the refund application form is mandatory. The Appellate Tribunal has held that the exempt material was not sold in the local market and was used in the manufacture of exported goods and, therefore, question of passing the incidence does not arise - there is a finding of fact recorded that balance sheet of the respondent produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed. Being aggrieved by the said order in appeals, the respondent preferred appeals before the Appellate Tribunal which have been allowed by setting aside the order in appeal and the orders-in-original. 3. The learned counsel appearing for the appellant submitted that the appeal be admitted on the substantial questions of law A, B, and C mentioned in paragraph9 of the appeal memo, which reads thus: A) Whether in the facts and circumstances of the case and in law, the Hon'ble CESTAT has erred in holding that the issue of unjust enrichment does not arise, in law as the Respondent herein has not passed on the incidence of amount claimed as refund on anyone else without considering that the Respondent herein has not disclosed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the orders-in-original as well as orders in appeal. He urged that the Assistant Commissioner has recorded findings of fact against the respondent on the ground that the respondent has failed to produce the relevant material documents such as Bill of Entry, TR6 Challan and before and after sales invoices of the imported goods and proof of confirmation that the incidence of duty has not been passed on to the consumers. He pointed out the finding recorded in the orders-in-original that the logging of S/Bills was done on 14th December 2009 as per the orders of the Appellate Tribunal. He submitted that the production of documents as set out in clause9 is a condition precedent for considering the claim for refund and the said mandatory requiremen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorization from the importer/buyer in case of applicant is an agent. b) Triplicate copy of Bill of Entry/ Post parcel wrapper/ shipping bill/ baggage receipt/ or the purchase invoice. c) Duty Challan/ other document as evidence of duty payment. ∕ d) Signed working sheet for the amount of claimed. ∕ e) Customs attested invoice. f) Customs attested packing list....... Firstly, no statutory provision or a provision of statutory rules is shown to us which makes the production of documents listed in clause9 of the prescribed form of refund as mandatory. On the contrary, perusal of clause9 would show that the requirement is not mandatory. Clause9 only contains the list of enclosures which could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of Entry. The finding of fact has been recorded by the Appellate Tribunal that it is evident from the perusal of the challans that duty is paid with reference to the number and date of the Advance Licences. The Challans were prepared by the Department and were signed by the Assistant Commissioner of Customs. It is further recorded that there is no dispute that the export obligation under the said Advance Licences which are referred to in the challans has been discharged and in compliance of the order of the Appellate Tribunal dated 22nd March 2007, the Department has logged in the DEEC book. In paragraph6.2, the Appellate Tribunal has again reiterated that the original challans were produced before the Commissioner (Appeals). It is furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of in the domestic market. The fact that the export obligation has been discharged and DEC book is duly logged in, clearly indicates that the exempt material is used in the manufacture of export product. The record indicates that the export goods were manufactured by supporting manufacturers mentioned in the Licences and the documents on record indicate that the goods were duly exported by the Appellants. 8. In the light of the aforesaid findings of fact, in paragraph7, the Appellate Tribunal has held that the exempt material was not sold in the local market and was used in the manufacture of exported goods and, therefore, question of passing the incidence does not arise. In paragraph11, there is a finding of fact recorded that bal ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
