TMI Blog2019 (5) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... condition of holding unjust enrichment and for appropriating / transferring the amount refundable to Consumer Welfare Fund is applicable except where the importer has not passed the incidence of such duty and interest to any other person (there are other conditions also but not applicable to the facts of the present case). It becomes abundantly clear that if and only if the incidence of duty is proved to be passed on by the importer to the buyers that the refund of the impugned amount could be transferred to the Consumer Welfare Fund. The order under challenge is the result of mere presumptions. There is no evidence by the Department to rebut the certificate given by the appellant s Chartered Accountant. Otherwise also the higher duty as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... established under Section 12 of Central Excise Act alleging that the appellant had unjust enrichment. The said proposal was initially confirmed vide Order-in-Original No.325 dated 08.06.2017 and the appropriation was confirmed vide the order under challenge. Being aggrieved, the appellant is before this Tribunal. 3. We have heard Mr.Manoj Makkar, ld. Counsel for the appellants and Ms. Tamanna Alam, ld. D.R. for the Department. 4. It is submitted on behalf of the appellant that the allegations of Department are absolutely wrong and are the result of mere presumption. To impress upon the same, it is submitted that from the invoices it is apparent that no CVD/ Excise Duty has been charged. As such, no incidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d hand printing machines, out of which, four machines could have been sold. The invoices in this respect clarifies that the sale has been made on the payment of VAT. Another fact as is apparent from the invoices is that the sale price of machines is much less than the cost of the machines. It is also an admitted fact that the cost of machines was inclusive of the CVD/ Excise Duty. Once the sale price is less and that the one out of five machines could not fetch any money, as it could not be sold, it is clear that the appellant had suffered. It is settled principle that when there is an element of loss, there arises no question of any unjust enrichment. The doctrine of unjust enrichment has explicitly been elucidated by Hon ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants have adjusted the amount in their income while arriving at the net profits, thus, showing that the incidence of duty has been passed on. But these observations are nothing more than the outcome of presumption of Commissioner (Appeals). The ignorance about the content of Chartered Accountant s Certificate, despite acknowledgement thereof, is opined to be a grave error on the part of the adjudicating authority. Perusal of Chartered Accountant Certificate, at this stage, makes it clear that the excess duty of Customs amounting to ₹ 8,41,826/- is mentioned in the certificate, to have been shown in the books of accounts. It has been specifically certified that too for the purpose of examination of the principle of unjust enrichm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant to have been enriched unjustly does not at all arise. This Tribunal also in the case of Business Overseas corporation vs. CC (Import General) reported in 2014 (9) LCX 0189 has held that goods sold at loss during relevant time are not in dispute. C.A. Certificates showing that the differential duty was not recovered from the customer. The burden of proof shifts to the Revenue. It was also held that if the Revenue fails to rebut the C.A. Certificate, the contention that no business-man would sell his goods at loss remains unsupported by any evidence. It was held in this case that in such circumstances, the incidence of duty is not passed on by the appellant. Applying the said case law to the given facts and circumstances, we are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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