TMI Blog2021 (9) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... on by the assessee/manufacturer from the end customers of the product manufactured. The facts of the present case are absolutely in contrast from the decision in the case of HINDUSTAN PETROLEUM CORPN. LTD. VERSUS COMMR. OF CUS. (IMPORTS) , MUMBAI [ 2015 (2) TMI 1136 - CESTAT MUMBAI] . In M/s HPCL case, the assessee had shown the amount as was prayed to be refunded by him, as expenditure in his books of accounts. It has been held in the said decision that once the amount has been shown as expenditure and not as receivables it definitely becomes the case of unjust enrichment. Admittedly, in the present case, the amount in question was shown as recoverable/receivables. The bar of unjust enrichment is therefore held to have wrongly been invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... @ 5% under Notification No.46/2011 Entry No. 358(1) against BCD @ 7.5%. However, at that time, he could not produce original certificate of origin with authentic signatures. Accordingly, provisional assessment was resorted for. The bills were, therefore, assessed provisionally in terms of section 18(1) of the Customs Act, 1962, however, by extending the aforesaid notification benefit. The clearance was thus covered under the provisional duty bond with revenue deposit amount of ₹ 15,09,146/- paid in lieu of the bank guarantee, pending verification of original certificate of origin. 1.1 On 09.01.2017 the appellant submitted the original certificate of origin along with original revenue deposit challans dated 23.01.2017 with the reque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... became entitled for the refund of the duty paid to the extent of excess 2.5% thereof. The said amount is ₹ 15,09,146/- as was paid as revenue deposit in lieu of bank guarantee. It is submitted that for these reasons the aforesaid amount has been shown as recoverable in the books of account of the appellant instead of being shown as expenditure. 3.1 It is submitted that principle of unjust enrichment has wrongly been invoked by the learned Commissioner (Appeals) while rejecting the refund of the appellant. It is further submitted that the certificate issued by the Chartered Accountant of the appellant has clearly explained that the duty incidence has not been passed on to end customers nor to any other person. The said certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the refund has been claimed was not collected by him from any other person. The Chartered Accountant s certificate, being non-explanatory about this aspect, has rightly been not considered by the Commissioner (Appeals). Impressing upon that there is no infirmity in the order under challenge, learned departmental representative prayed for dismissal of appeal. 5. After hearing rival contentions of the parties and perusing the entire record, it is observed and held as follows: Commissioner (Appeals) has rejected the refund of the appellant based on the following two findings. (i) that the appellant/assessee has not proved constructively with the supporting documents that the duty paid is not charged to the buyer and whether there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of material the amount has to be debited from the cash account and has to be credited towards expenses of materials account in the profit and loss statement. On the other hand, if the burden of duty has been borne by the manufacturer itself, the amount shall be debited in the cash account and a credit as receivables shall be shown in the books of accounts. Such entry will also be sufficient to hold that the manufacturer is expecting this amount as refundable to him from the department. It has been settled by catena of judgments that if an amount is still lying outstanding or is shown as receivables in the books of accounts, in that case it cannot be said that the assessee has received the amount from its buyers. The question of attractio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly, the decision of Hon ble Apex Court in the case of M/s Solar Pesticides Pvt Ltd (supra) has been wrongly applied to the facts of the present case which simply talks about the documents to be mandatorily provided in terms of section 27(1A) of the Customs Act to prove that there has been no unjust enrichment. As there have been sufficient documentary evidences in the form of books of accounts on record and thus the Commissioner (Appeals) has been held to have wrongly ignored the said document. In addition to those documents, there has been a certificate by the authorized auditor of the appellant produced on record certifying that the amounts as has been prayed to be refunded has been the receivables by the appellant, the incidence thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X
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