TaxTMI 
TaxTMI 
2025 (11) TMI 699
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....099 of 2025, 10161 of 2025, 10162 of 2025, 10163 of 2025, 10164 of 2025, 10165 of 2025, 10166 of 2025, 10167 of 2025, 10168 of 2025, 10174 of 2025, 10175 of 2025, 10176 of 2025, 10177 of 2025, 10178 of 2025, 10188 of 2025, 10189 of 2025, 10190 of 2025, 10191 of 2025, 10192 of 2025, 10193 of 2025, 10194 of 2025, 10195 of 2025, 10196 of 2025, 10197 of 2025, 10198 of 2025, 10199 of 2025, 10200 of 2025, 10201 of 2025, 10202 of 2025, 10203 of 2025, 10208 of 2025, 10209 of 2025, 10210 of 2025, 10211 of 2025, 10212 of 2025, 10213 of 2025, 10214 of 2025, 10215 of 2025, 10234 of 2025, 10235 of 2025, 10236 of 2025, 10237 of 2025, 10238 of 2025, 10239 of 2025, 10255 of 2025, 10256 of 2025, 10257 of 2025, 10258 of 2025, 10259 of 2025, 10260 of 2025, 10261 of 2025, 10265 of 2025, 10281 of 2025, 10282 of 2025, 10284 of 2025, 10291 of 2025, 10294 of 2025, 10298 of 2025, 10299 of 2025, 10300 of 2025, 10301 of 2025, 10302 of 2025, 10303 of 2025, 10304 of 2025, 10305 of 2025, 10306 of 2025, 10307 of 2025, 10308 of 2025, &n....
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....g with the vessel. Department, however initially was of a view that Fuel and Oil contained in Bunker Tanks were to be assessed to duty under respective CTSH of Chapter 27 and accordingly the bill of entry was assessed to duty of Rs. 24,08,52,292/- The Bill of Entry was provisionally for want of original documents. 3. This Bench of CESTAT vide its orders A/11792-11851/2022 dated 17.10.2022/01.12.2022 had held that the oil contained in the Bunkers Tanks in the engine room of the vessel is to be assessed to duty under CTH 8908, along with the vessel coming for breaking up. Further, in adherence to aforesaid order of the CESTAT, it was decided by the Assistant Commissioner, Customs Division, Bhavnagar in Final Assessment Order No. 752/2537219/SBY/2023-24 dated 20.03.2024 that Bunker Tanks containing oil are to be treated as part of vessel's machinery and the Oils contained in them are to be classified under CTH 8908 along with the vessel, as covered under Para 2(b) of circular no. 37/95-Cus. Dtd. 03.07.1996. The bill of entry was finally assessed to duty of Rs. 23,98,80,229/-vide Final Assessment order No.752/2537219/SBY/2023-24 dtd. 20.03.2024 passed by the Assistant Commission....
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....he Bunkers on which the duty was assessed and paid. When the Appellant has been unable to recover from the Buyers, even the full import price of the Bunkers on which the duty was assessed, the question of recovering the duty assessed on such import price does not arise at all. Merely because the duty amount was debited to expenses in Profit & Loss Account, it does not follow that incidence thereof was passed on to the buyers, when the price at which the Bunkers were sold to the buyers, was even less than the import price on which the duty was assessed: 6. The Assistant Commissioner has proceeded on the premise that since the duty paid on the Bunkers was debited to expenses, it must be considered to have been passed on to the buyers by the Appellant. The said premise on which the Order of the Assistant Commissioner is based is untenable in law. It is settled law as laid down in the following judgments that debit of the duty amount to expenses, without corresponding addition in the import price to arrive at the local sale price. means that Appellant has absorbed and borne the said amounts and it cannot lead to the conclusion that the Appellant has passed on the incidence thereof: ....
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....quires that AC/DC seeking to allow refund should go through audited balance sheet and other related financial records, certificate of the Chartered Accountant etc. to decide whether incidence of the duty and interest has been passed or not? 10. This Court has considered the rival submissions. It finds that the disputes at this stage is only from the angle of as to whether unjustenrichment will or will not apply to the matter and with its factual matrix?. It finds that from the table produced by the appellant that the price at which the bunkers were sold by the appellant was quite below the import price/value of the Bunkers on which the duty was assessed and paid. Therefore, the appellant have claimed that they have not been even able to recover full import price of the Bunkers on which duty was assessed and therefore there cannot have been any question of recovering the duty assessed on such import price. The table is reproduced at annexure 48 of appeal by way of example of the present appellant. M/s. Dynamic Ship Recyclers Pvt. Ltd, SBY Alang OIO No 100/Cus-Ref/2023-24 Dated 30.03.2021 BILL OF ENTRY NO-7329188 Dated 23.07.2018 Description Of Goods Qua....
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....ue to prove recovery of extra cost from the Customers by producing more evidence. Revenue has failed to advance any evidence to rebut Chartered Accountant's Certificate. 13.1 This Court finds that the situation is no different in this case. Therefore, the majority view of the case (cited supra) shall apply to the facts and circumstance of this case also. And once the Chartered Accountant Certificate has certified an aspect the onus shift on the department. Similar view also emerges from the decision of 2006 (202) ELT 404 (Mad) in the matter of Commissioner Central Excise Vs. Flow Tech Power as also in the matters in 2017 (357) ELT 1041 (Tri.-Ahd.) of Equinox Solutions Ltd Vs. CCE Ahmedabad, as well as in 2013 (290) ELT 386 (Tri. Ahd.) in the matter of Interplex India Pvt Ltd Vs. CC Ahmedabad. This Bench has taken a view that even production of Chartered Accountant Certificate shifts the onus to the department. 13.2 This Court finds that in instant case not only Chartered Accountant Certificate is on record certifying the fact of not passing on the duty but also additionally factum of selling below cost is also on record which has also been taken into consideration by various ....