TMI Blog2021 (6) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the Basic Customs Duty itself was not legally payable, but was paid in excess - Further, stock movement is traced from the date of its import, to its usage (19/9 days), but a finding is given to the effect that the same was sufficient to hold the passing on of the duty element. However, there is no finding at all as to what was actually passed on; rather, the exact amount of duty that was passed on is not there which is very vital. The Adjudicating Authority has very comfortably adopted the amount of refund claimed as the amount of duty passed on without demonstrating the specific amount, from the books or the Balance sheet. The impugned order is not sustainable, is liable to be set aside - the matters are remanded to the file of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 8,06,11,353/- for the Bill-of-Entry dated 23.10.2017. The Adjudicating Authority observes that during the course of provisional assessment, the importer-appellant had also executed Provisional Duty Bond for an amount of ₹ 2,59,43,118/- along with a Bank Guarantee for ₹ 16,36,000/- as security for the PD Bond for the Bill-of-Entry dated 12.10.2017 and another Provisional Duty Bond for an amount of ₹ 3,83,63,664/- along with a Bank Guarantee for ₹ 24,19,000/- as security for the PD Bond for the Bill-of-Entry dated 23.10.2017. There is also an observation that the goods were thereafter cleared on payment of provisional duty of ₹ 5,45,12,779/- paid through e-payment on 13.10.2017 in respect of the first Bill-of- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce) for the period 17th October 2017 (Goods Receipt Date) to 4th November 2017; they are adopting weighted average method of inventory valuation in their books of accounts; that they request to process the refund of BCD Cess portion only. (Emphasis in original) 2.2 In the Orders-in-Original, the Adjudicating Authority determines the excess duty paid and the refund claims of BCD and thereafter, proceeds to examine the claims of the appellant from the perspective of unjust enrichment, if the duty was passed on, in terms of Section 18(5)(a) of the Customs Act, 1962. The Adjudicating Authority thereafter proceeds to examine the usage of raw materials in the production of the final product (i.e., PVC) based on the entries in the Book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders-in-Original, the refund was sanctioned, however, was ordered to be credited to Consumer Welfare Fund in terms of Section 18(5) of the Customs Act, 1962. 3. The appellant preferred First Appeal against the above action of AA directing credit into welfare fund before the Commissioner of Customs and Central Excise (Appeals), Tiruchirappalli, but it having not met with success there in its first appeal where the Commissioner (Appeals) vide common impugned Order-in-Appeal Nos. 210 211/2018-TRY(CUS) dated 16.11.2018 dismissed the appeals, has filed the present appeals before this forum. 4. Heard Shri V.S. Manoj, Learned Advocate appearing for the appellant and Ms. T. Usha Devi, Learned Departmental Representative for the Revenue and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the closing stock in the balance sheet at the end of the year? Was it never utilized? A clear finding on all these aspects is very much necessary, besides a positive finding on the exact amount of duty that is passed on, which are not there. 7. For the above reasons, I am of the clear opinion that the impugned order is not sustainable, is liable to be set aside and accordingly, the same is set aside. The matters are remanded to the file of the Adjudicating Authority to determine the above factual matrix after giving sufficient and reasonable opportunities to the appellant and then pass a speaking order as per law. All the contentions are left open. 8. The appeals are allowed by way of remand. (Order pronounced in the open court o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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