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Commissioner of Customs, Mangalore-cus Versus Atlantic Shipping Pvt Ltd

2017 (11) TMI 429 - CESTAT BANGALORE

Refund claim - unjust enrichment - finalisation of provisional assessment - case of assessee is that the question of passing the duty to anyone else does not arise in the present case as there is no buyer and seller and entire consumption was captive consumption - Held that: - identical issue decided in the case of CC, Kandla Vs. Ambica Maritime Ltd. [2007 (8) TMI 518 - CESTAT, AHMEDABAD], where it was held that the same was a notional amount and the quantity for which the duty was paid was not .....

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has been filed by the Revenue against the impugned order passed by the Commissioner(Appeals) dt. 17/01/2017 whereby the Commissioner(Appeals) has rejected the appeal of the Department against the Order-in-original. 2. Briefly, the facts of the present case are that the respondent had filed Bill of Entry No.72 dt. 31/03/2015 for the estimated bunkers and provisions to be consumed on the vessel MV Dawn Mathura during the period of her coastal run. Consequent to the reversion of the vessel, ibid, i .....

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), after verifying the claim, has sanctioned the refund of ₹ 3,72,765/- vide Order-in-Original No.25/2016 Refund dt. 04/07/2016, ibid. this Order-in-Original was reviewed and found to be not proper and legal as the issue of unjust enrichment was not verified by the refund sanctioning authority. Accordingly, the department preferred an appeal before the Commissioner(Appeals). The appeal was decided by the Commissioner(Appeals) and the Departmental appeal was rejected holding inter alia that .....

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perused records. 4. Learned AR for the Revenue submitted that the impugned order is not sustainable in law as the same has been passed without considering the doctrine of unjust enrichment. He further submitted that the Commissioner(Appeals) has wrongly held that there is no concept of buyer and seller in the case where bunkers supply is made to the vessel on conversion of the same into coastal run. He further submitted that the Commissioner(Appeals) has wrongly accepted the certificate issued .....

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r(Appeals) also upheld the Order-in-Original and dismissed the appeal of the Department relying upon various decisions on identical issue. He further submitted that the assessee ha also filed a Chartered Accountant certificate which certified that incidence of duty has not been passed on to any one and the same has been borne by the assessee. He further submitted that the question of passing the duty to anyone else does not arise in the present case as there is no buyer and seller and entire con .....

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