TMI Blog2023 (12) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... counts as receivables, once they were informed of the test results and for which reasons they had paid the duty at the first instance only under protest. Once certain about the leviability of the imported goods at nil rate of duty, as informed to them by the Department, the respondent has also indicated the same in their books of account. Since the refund amount was contingent upon the outcome of the test report, it is very obvious that the said amount could not be reflected as receivables then and there. It is also noted that in case of M/S. SAVITA OIL TECHNOLOGIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, BELAPUR [ 2016 (12) TMI 1222 - CESTAT MUMBAI] wherein the co- ordinate bench of this Tribunal had held that when the amount actua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acting Customs duty at the rate of 10% adv. The importer paid the duty under protest and also followed it up by formal letter of protest to the Department. The goods were subsequently got tested from Electronic Regional Test Laboratory (ERTL) whereupon the Department concluded that the subject goods were classifiable under CTH-85447090 attracting nil rate of Basic Customs Duty. 2.3 The respondent herein, thereafter, filed two refund claims with reference to the said 26 Bills of Entry. They also enclosed therewith Chartered Accountant s Certificate indicating that the amount was due as refund of Customs duty and was shown in the Books of Account and not passed on to the buyers. The respondent also submitted Statutory Auditor s Certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion were exempt from payment of customs duty and that is why it was not liable to pay any customs duty on the imported goods. Customs authorities did not agree with this contention and consequently asked the assessee to pay customs duty to the tune of Rs. 94,86,522/-. Assessee paid the whole customs duty Under Protest and got the goods released. Orders of the customs authorities were ultimately reversed by the Tribunal and it was held that the goods imported by the assessee would be classifiable under Sub-Heading 3002.90 and were exempt from payment of customs duty under the aforesaid notification. This order became final. 3. Assessee thereafter filed an application claiming refund of the customs duty paid by it. The authority-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter. The goods were sold to the customers at the same price which was stated in the price list. (iii) That there was an auditor s certificate certifying that assessee had not passed on the customs duty to the customers.came to the conclusion that the assessee had not passed on the burden of the customs duty to its customers. This finding is a finding of fact based on evidence which does not call for any interference. 6. It is a fact on record that the refund amount has been shown as receivables in the Books of Accounts of the respondent in the year 2015-2016 and is clearly indicated as claims receivables from the Customs . The plea of the Department that the said claim was shown as expenditure in the financial year wherein t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at when the amount actually paid does not lead to obvious conclusion that the burden of duty has been passed on, the date of recording of the said amount in the Books of Accounts is irrelevant. Even otherwise, mere accounting is not conclusive proof that the burden of duty has been passed on and has to be empirically justified. 9. We find that on the very issue, the Hon ble Bombay High Court in the case of Commissioner of Central Excise, Pune I Vs. Sandvik Asia Limited reported in 2015 (323) ELT 431 (Bom.), has held as under : 4. On perusal of the impugned order and considering the arguments of both learned counsel, we are unable to agree with Mr. Kantharia. The Tribunal was not concerned with the treatment given to the amount and a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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