2023 (1) TMI 111

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....As on today, learned DR has expressed his inability to produce the invoices despite the diligent efforts over the entire period sought for the purpose. Learned DR has expressed the desire to make his submissions based upon the available record of the impugned appeal. No objection has been endorsed by the learned Counsel for the assessee/respondent. Remaining arguments, accordingly heard on behalf of both the parties. 2. Present is an appeal filed by the department against the Order-in-Appeal No. D-II/245/2021-22 dated 21.06.2021, vide which the order of rejecting the refund for an amount of Rs.10,95,224/- as was directed to be deposited under Consumer Welfare Fund has been set aside, entitling the assessee for the refund of said amount alo....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....les invoices submitted by the claimant, the authority worked out the difference in import price and sale price in the manner as shown in the chart in Order-in- Original itself and accordingly had concluded, since the sale price was not higher with respect to the invoices amounting for Rs.97,58,928/- that the said amount was ordered to be refunded, however, with respect to the amount of Rs.10,95,224/- out of the total claim, the sale price was opined to be much more than the total of import value + normal duty + differential duty and that the assessee was found to have failed to show that the burden of duty has not been passed on to the respective buyers, that the refund for said amount of Rs.10,95,224/- was rejected which was directed to be....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....Certificate is observed by the Reviewing Authority, to be highly insufficient to discharge the said burden of assessee/respondent. The order under challenge is accordingly prayed to be set aside and appeal is prayed to be allowed. 5. Per contra learned Counsel for the assessee/respondent has mentioned that the only evidence as could be produced by the assessee/respondent to prove that they have not passed on the burden of duty incidence to the prospective buyers would have been the C.A. Certificate and audited balance sheets. Both the documents were duly been produced even before adjudicating authorities below. The original adjudicating authority had wrongly ignored those documents. Hence, there is no infirmity in the order under challenge....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ufficient documents for the proof of the contents in the said certificate. It was specifically held that where the assessee/respondent has exhibited on the basis of Books of Account and C.A. Certificate that the incidence of excess duty paid for which the refund was sought for, has not been passed on to any other person, there is no reason to still hold that the assessee/respondent has been unjustly enriched. Such findings are liable to be set aside and assessee is entitled for the refund. 7. The Mumbai Bench of this Tribunal in another case of Commissioner of C.Ex., Pune-I Vs. DGP Honoday Industries Ltd. reported as 2015 (329) E.L.T. 439 (Tri.-Mumbai) has also held that where the assessee/respondent through the certificate issued by Chart....