TaxTMI 
TaxTMI 
2024 (3) TMI 1054
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....t incidence of duty was not passed on to the buyer, hence, eligible for refund and sanctioned the refund. Aggrieved by this order the department filed an appeal before the Commissioner (Appeals), the Commissioner (Appeals) did not dispute the above facts but found them not to be conclusive evidence to discharge the burden of unjust enrichment. He observed that the conclusive evidence can be ascertained from the financial records and the financial records do not show the refundable amount as receivables. Relying on the Circular dated 28.05.2008, held that the appellant is not eligible for the refund since the question of unjust enrichment has not been proved. 2. At that outset, the learned counsel submits that the appellant exported Iron Ore Fines and declared the export value in the said Shipping bill as FOB value being the agreed price in terms of Clause 4 of the buyer and seller contract. The goods were exported based on the value and payment of duty as shown below: Particulars As per Contract with Foreign buyer As per the Shipping Bill As per provisional invoices As per final invoice Quantity of export goods 45000 MT 44070MT 44070 MT 44042 MT Value / Price of ex....
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....statements under the Heading 'Claims and Refunds' includes the element of export duty. Further, relied on the following judgments for acceptance of Chartered Accountant Certificate as sufficient proof to discharge the burden of unjust enrichment. * Commissioner of Customs Vs. AT&S India Pvt. Ltd., 2006 (199) ELT 123 (Tri.- Bang), * Objects d'Art India Vs. Commissioner of Customs, 2016 (344) E.L.T. 569 (Tri. Mumbai) and * Principal Commissioner of Customs Vs. Hazira Lng Pvt. Ltd., 2018 (360) E.L.T 580 (Guj) 3. On behalf the Revenue, the learned Authorised Representative submits that as per the Board Circular No. 7/2008-Cus. dated 28.05.2008 the details of balance sheet and other related financial records should have been verified by the original authority in order to decide the element of unjust enrichment and therefore, submits that the Commissioner (Appeals) was right in rejecting the refund on the question of unjust enrichment. He also relied on the decision of the Hon'ble High Court Madras in the case of Commissioner of Customs (Export), Chennai vs. Scientific Instruments Co. Ltd.: 2014 (12) TMI 530 - Madras High Court and the decision of Supreme Court in the case of Unio....
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....e evidence. Clearly, the very approach is wrong." 5. Similarly in the case of Indian Metals and Ferro Alloys (supra) which was upheld by the Supreme Court. The Tribunal held that: "4.2 As regards the question of "unjust enrichment" the findings of the authorities below in our view, are not tenable. Invoices are the normally the best evidence whether the burden of duty has been passed on or not by a manufacture to his customers. If the invoices do not show any element of duty having been recovered from the customers, it has to be assumed in the absence of any evidence to the contrary produced by the department or admission by the party, that no burden of duty has been passed on to the customers. In the present case, we note that it is the Appellants themselves who have come forward and admitted that they have realised a certain amount from some of the customers, no evidence has been produced by the department that the Appellants have realised over and above that admitted amount. Therefore the admission of the Appellants for realisation of a certain amount cannot be held against them for the entire amount, in the absence of any evidence to the contrary by the department. The infer....
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....s and the commercial invoice, or its equivalent electronic message, in conformity with the contract of sale and any other evidence of conformity which may be required by the contract. A2 Licences, authorizations and formalities The seller must obtain at his own risk and expense any export licence or other official authorization and carry out, where applicable, all customs formalities necessary for the export of the goods. A3 Contracts of carriage and insurance Contract of carriage No obligation Contract of insurance No obligation A4 Delivery The seller must deliver the goods on the date or within the agreed period at the named part of shipment and in the manner customary at the port on board the vessel nominated by the buyer. A5 Transfer of risks The seller must, subject to the provisions of B5, bear all risks of loss of or damage to the goods until such time as they have passed the ship's rail at the named port of shipment. A6 Division of costs The seller must, subject to the provisions of B6, pay all costs relating to the goods until such time as they have passed the ship's rail at the named port of shipment; and where applicable, the costs of customs formal....