2019 (4) TMI 448

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..../polyester mink blankets made out of 100% polyester spun yarn. During the period May 2013 to July, 2015, these imports were made by the appellant from China. The goods were assessed to basic excise duty and CVD leviable under Section 3 of Central Excise Tariff Act, 1975 along with other duties payable under the Act. The appellant was of the view that the goods imported by them does not attract Countervailing Duty (CVD) leviable under Section 3 of the Tariff Act because the excise duty on the like articles if manufactured in India is exempted by Notification No.30/2004-CE dt.9.7.2004. But for clearance of the goods, the appellant paid CVD under protest and later on contested the same before this Tribunal. This Tribunal held that the appellan....

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....ount is recoverable from the department. In that circumstance, they have passed the bar of unjust enrichment and entitled to claim refund. To support his contention, he has relied upon the decision of this Tribunal in the case of Yamuna Gases & Chemicals Ltd.-2017 (347) ELT 291 (Tri.-Chd.) and CCE, Pune vs. Sandvik Asia Ltd.-2015 (323) ELT 431 (Bom). Therefore, prayed that the appellant has passed the bar of unjust enrichment. 4. On the other hand, the Ld.AR supported the impugned orders. 5. Heard the parties and considered the submissions. 6. On careful consideration of the submissions made by both sides, we find it is a fact on record that the appellants have paid CVD and under protest and the letter of protest has not been denie....

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....see's profit and loss account. It is immaterial and irrelevant for the Tribunal and equally for us as to what the Assessee terms this amount in his Books of Account. Even if it is shown on the 'expense side' that does not mean that the presumption that the burden has been passed to the consumer can be raised." 11. Admittedly at the time of clearance of the imported goods, the appellants have paid CVD under protest as the said duty was not recovered from the customers evidencing invoiced issued by the appellants. Therefore, we hold that the appellants have passed the bar of unjust enrichment. Merely, the appellants have made debit entry in the Profit and Loss Account as expenditure and not shown in the balance sheet as dues recoverable fr....