2021 (6) TMI 792

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....bove goods attracted Basic Customs Duty ("BCD‟ for short) of 2.0% also. 1.2 The appellant sought for provisional assessment for clearance of the above, since they were unable to produce original documents required at that point of time, and also requested for permission to pay the Customs Duty for the Bill-of-Lading quantity with an undertaking to pay the differential duty, if any, with applicable interest in case the quantity discharged was more than the declared quantity. Based on the above request for provisional assessment, the Bills-of-Entry in question were provisionally assessed by adopting the quantity and price as declared therein and the duty liability was determined at Rs. 5,45,12,779/- for the Bill-of-Entry dated 12.10.....

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....the same was sought. The relevant observations of the Adjudicating Authority in the Order-in-Original No. 43/2017-18 dated 28.03.2018 reads as under: "10. Accordingly, the importer submitted their reply vide letter dated 01.12.2017 wherein they have inter alia stated that they have availed the IGST portion of the refundable amount as Input Tax Credit; that they intend to utilize the same to discharge their duty liability towards outward supply of goods; that they have submitted the journal entries of books of accounts for reversal of BCD & Cess Portion of refundable duty from the cost of the goods; that they have submitted the SAP Print out of stock movement of both VCM and PVC (opening balance, production and closing balance) for ....

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....ively; that from the details of stock between 17.10.2017 to 04.11.2017, he was of the opinion that the whole quantity of imported goods, for which the duty element of BCD and Customs Education Cess was included, had been utilized in the manufacture of final product namely, Poly Vinyl Chloride (PVC) Resin and held that the PVC manufactured out of the imported raw material was transferred by way of sale to the ultimate buyer by 04.11.2017 (the date when the reversal entry was made), etc., and finally concluded that the duty element, to the extent of which refund was claimed, was passed on to the buyer and that therefore the claim of the appellant was hit by unjust enrichment. Thus, vide the above Orders-in-Original, the refund was sanctioned,....

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....nding is given to the effect that the same was sufficient to hold the passing on of the duty element. However, there is no finding at all as to what was actually passed on; rather, the exact amount of duty that was passed on is not there which is very vital. The Adjudicating Authority has very comfortably adopted the amount of refund claimed as the amount of duty passed on without demonstrating the specific amount, from the books or the Balance sheet. 6. Moreover, the stock of materials for a very short period i.e., 19 days and 9 days respectively as regards each Bill-of-Entry, alone are considered. What then happens to the opening stock as at the beginning of the year? Has it remained a part of the closing stock in the balance sheet at ....