TaxTMI 
TaxTMI 
TaxTMI 
2024 (10) TMI 1186
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.... sanctioned by law and, consequent to finalisation of assessment, refunded to them but, upon challenge mounted at the instance of the jurisdictional Commissioner of Customs, was ordered to be returned for parking in the Fund. The sanctioning authority under section 27 of Customs Act, 1962, had, in its wisdom, considered the documentation furnished by the claimant to be satisfactory on all three counts: limitation, merit and unjust enrichment. There is no dispute as to the correctness of the final assessment and it is only about the claim of adequacy of discharge of onus of establishing that the amount so refunded had not 'unjustly enriched' them at the cost of their customers presumed by law to have borne the incidence of the excess amount so levied. 2. The bills of entry no. 9424384/24.04.2017 and 9762026/ 19.05.2017 submitted by appellant for clearance 164773 and 164284 metric tons of 'iron ore' were assessed provisionally under section 18 of Customs Act, 1962 to Rs. 22,16,92,257 and Rs. 20,40,54,191 respectively as duties of customs owing to non-sufficiency of documents and pendency of test report necessary for a final call on valuation given that supplier was 'related' to them....
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....n issued on assumptions of section 28C and section 28D of Customs Act, 1962 being applicable when the obvious lack of applicability, arising from captive consumption, should have been all too clear to the adjudicating authority. It was contended by him that provisional assessment was not a cavil of the appellant at the time of clearance and that refund could, in any case, be contemplated only upon finalization and, thus, logically acknowledged in the books of accounts only then. He argued that provisioning at any time was sufficient without having to parallel the course of the dispute and cited various decisions of the Tribunal as well as judgement of the Hon'ble High Court of Bombay in Commissioner of Central Excise, Pune-I v. Sandvik Asia Ltd [2015 (323) ELT 431 (Bom)]. He submitted that, in the absence of challenge to contents of certificate of chartered accountant in the appeal, the first appellate authority had travelled beyond the scope of appeal to pick at the mode adopted by the lower authority and even suggest that documents that were not before him should have been scrutinized by that authority. 5. Learned Authorised Representative refuted the submission of Learned Couns....
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....en the benefit is not allowable to the claimant as held by the Hon'ble Supreme Court in the case of Dilip Kumar & Co. [2018 (361) ELT 577 (SC)]. 10. Therefore I hold that the subject refund claim is hit by the clause of "unjust enrichment". .....' We take note of three inherent flaws in the impugned order. While the refund sanctioning authority was satisfied that the certificate of chartered accountant sufficed for the purpose of determining that incidence of duty had not been passed on, the first appellate authority found the same certificate to be deficient for want of such treatment from the year of provisional assessment and has placed on record absence of any other evidence having been submitted for discharge of onus. Consequently, without affording opportunity to the assessee to make good the then revealed gaps, the impugned order has gone on to hold that the assessee had been unjustly enriched. Furthermore, the decisions cited by the first appellate authority do not lead to such conclusion in that those were based on the clear findings of absence of ever having treated the amounts involved as receivables which does not fit the facts of the present dispute. Moreover, in di....
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....alance sheet is adequate assurance that the amount in question has not been charged on articles that were manufactured from imported goods. The impugned order is in error too for having invoked the decision in re Dilip Kumar & Co which were rendered in the context of availment of exemption and on re-evaluation of the law holding the field till then. Findings rendered on erroneous application of statutory provisions can only fail to find validity within the law. 8. It is virtually impossible to correlate the duty paid on imported goods with sale value of products manufactured therefrom and accounting principles have it that, except when retained as asset in the accounts, expenditures inhere in the price of goods sold. Not unnaturally, such inhering is also not correlatable except on the premise that totality of goods sold is a growing amorphous mass represented by accumulated price realisation. It is equally impossible to assign timelines pertaining to deployment of imported goods in the manufactured products. The present dispute may, in effect, be restated to posit that the case of customs authorities is that imported goods have been used in the year of procurement for manufacture....