TMI Blog2019 (2) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... by the counsel for the appellant before the bench backed by the balance sheet and other documents, it is clear that appellant has not included customs duty element (CVD and SAD) on the goods imported in the cost of their manufacture and has only accounted for them as amounts receivable in their books of accounts - thus, the appellant has not passed on the burden of customs duty claimed and therefore they are entitled to refund of the same. The impugned order is modified to the effect that the refund amount shall instead of being credited to the Consumer Welfare Fund be paid to the appellant - appeal allowed - decided in favor of appellant. - C/30319/2018 - A/30129/2019 - Dated:- 24-1-2019 - Mr. P. Venkata Subba Rao, Member (Technica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Order-in-Original. In his order, the first appellate authority relied on the case law of Solar Pesticides Pvt Ltd as reported in 2000 (116) ELT 401 (SC), in which the Hon ble Supreme Court held that refunds will be governed by principle of unjust enrichment even when the goods were used by the claimants for captive consumption because they could have indirectly passed on the burden to the customers by adding it to the cost of production. He recorded that the appellant had submitted CA certificate stating that they have not passed on the burden of the customs duty to their customers which however was not satisfactory as they have not provided details as to how he came to the conclusion that the burden was not passed on to their customers. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ims receivable account which is forming part of the current asset in balance sheet. Thus it is evident that duty has not been passed on to the customer. 5. We have also verified the cost sheet as attached in Annexure-I for the finished product Sulphur Bentonite with relevant records. The cost of raw material Sulphur (liquid) as shown in the cost sheet is verified and certify that it is accounted for without the excess custom duty of ₹ 25,01,785/-. Thus the sales price of the Sulphur Bentonite does not include the excess of the custom duty paid. 4. She further takes the Bench through their balance sheets to show that their current assets included an entry for short term loans and advances which cover various items including th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are traded but also to goods which are captively consumed by the claimant in the manufacture of products. The duty element can be indirectly passed on to the customers by including their duty in cost of production. Both the judgments in the case of Solar Pesticides Pvt Ltd (supra) and of Principle Bench of Tribunal in the case of Modipon Fibre Co. (supra) confirm this legal position and the first appellate authority has relied on these judgments. However, in the facts of the present case, on the basis of the CA certificate produced by the counsel for the appellant before the bench backed by the balance sheet and other documents I am satisfied that appellant has not included customs duty element (CVD and SAD) on the goods imported in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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