2015 (12) TMI 787

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....AR), for the Respondent. ORDER The appeal is directed against Order-in-Appeal 21/Mumbai-III/2012, dated 20-2-2012 passed by the Commissioner of Customs (Appeals), Mumbai Zone-II wherein the Order-in-Original No. R&I/Refund-0/2009, dated 8-1-2010 was set aside and the Revenue's appeal was allowed. 2. The facts of the case is that SIIU Officers of Preventive Commissionerate, Mumbai sei....

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.... order dated 5-8-2008 set aside the demand on the ground of limitation. Consequent to the Tribunal's order, the appellant filed a refund claim of Rs.  29,90,000/- before the Assistant Commissioner (R&I), which was sanctioned. On the aspect of unjust enrichment, the Assistant Commissioner given a finding that this being a case of revenue deposit, no unjust enrichment is applicable. Revenue cha....

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...., while sanctioning the refund, has not gone into the fact, whether incidence of duty, for which refund is sought for, has been passed on or otherwise. In my view, even if it is a case of refund of revenue deposit, test of unjust enrichment has to be passed on. The appellant during the proceedings before the Commissioner (Appeals) has submitted a Chartered Accountant's certificate, which was issue....

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....ught for, has not been booked as an expenditure in the profit and loss account and shown in the asset side of the balance sheet as receivable, it is sufficient evidence that the incidence of duty has not been passed on. 6. In view of my above discussion, the appeal is allowed by way of remand to the Assistant Commissioner of Customs, Refund Cell, R&I, New Custom House, Ballard Estate, Mumb....