https://www.taxtmi.com/css/info/rss_sitemap/rss_feed.css?v=1746094055 https://www.taxtmi.com Business/Tax/Law/GST/India/Taxation/Policies/Legal/Corporate Tax/Personal Tax/Vat Law/Legal Information/Tax Information/Legal Services/Tax Services Tax Management India. Com / MS Knowledge Processing Pvt. Ltd. All rights reserved. One stop solution for Direct Taxes and Indirect Taxes https://www.taxtmi.com/caselaws?id=759914 https://www.taxtmi.com/caselaws?id=759914 Refund of export duty being the excess duty paid on account of downward revision of export duty - price revision clause - rejection on the ground that the appellant failed to produce documents to rebut the presumption under Section 28D of the Customs Act, 1962 - to discharge the burden to show that incidence of duty had not been passed on to others - principles of unjust enrichment - HELD THAT:- The learned Commissioner in the impugned order, without analysing the documents concluded that appellant had only placed the balance sheet for the year 2007-08 and 2009-10 but failed to produce any bills, vouchers, receipts relating to various expenses relatable to cost of the goods for verification and rejected the argument of the appellant that the incidence of export duty was borne by them and not passed on to the overseas buyers. On going through the cost sheet duly certified by the Chartered Accountant enclosed with the appeal paper book, we find that in arriving the cost of the material, the export duty amount was calculated @ Rs.51/- per MT for 20102 MT, which was shown separately and not included in the FOB value. The Hon ble Andhra Pradesh High Court in the case of ASIA PACIFIC COMMODITIES LTD. VERSUS ASSISTANT COMMR. OF CUS., KAKINADA-I [ 2012 (11) TMI 919 - ANDHRA PRADESH HIGH COURT] , more or less analysing a similar FOB value contract rejecting the contention of Department that bar of unjust enrichment is applicable in such cases observed In these appeals, the invoice value is also FOB value. Therefore it cannot be said to include the duty paid under the Cess Act and, therefore, the presumption under Section 28D of the Act stands rebutted by the appellants. The CCE (A) went utterly wrong in construing the point A6 ignoring paragraph 14 of Incoterms as well as the sale contract between the appellant and buyer. Therefore the CESTAT was justified in holding that the finding of CCE (A) that FOB value included the cess is unsustainable. Further, this Tribunal in M/S. MUNEER ENTERPRISES VERSUS COMMISSIONER OF CUSTOMS, MANGALORE [ 2024 (3) TMI 1054 - CESTAT BANGALORE] , in similar circumstances analysing the admissibility of refund of export duty paid consequent to issuance of Notification No.62/2007 dated 03.05.2007, on export of Iron Ore fines against FOB contracts held that incidence of duty has not been passed on to overseas buyers. Further, the Circular No.18/2008-Cust dated 10.11.2008 referred to by the Department in support of their case is not applicable to the facts of the present case inasmuch as under the said Circular, the practice of determination of assessable value of export of goods was continued to be from cum-duty price on back ward calculation till 31.12.2008 in consonance with long standing practice followed by various Customs Houses; however, the practice was discontinued w.e.f. 01.01.2009. There are no merit in the impugned order. Consequently, the impugned order is set aside being devoid of merit and the appeal is allowed. Case-Laws Customs Wed, 09 Oct 2024 00:00:00 +0530