2026 (1) TMI 341

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....12 totally valued at Rs.40,20,932/-. The goods/gold jewellery was classified under sub-heading 711319 of the Customs Tariff Act, 1975. The appellant claimed duty exemption under Notification No. 82/2004-Cus. dated 31.08.2004 read with Notification No. 101/2004-Cus. dated 31.08.2004. However, department denied appellant being eligible for the benefit under FTA scheme. Accordingly, show cause notice dated 07.09.2013 was served upon the appellants proposing the recovery of short paid customs duty amounting to Rs.4,18,297/-. The amount was deposited vide two challans both dated 29.12.2012. 2. The said show cause notice was adjudicated vide Order-in-Original No. 40/2018-19 dated 29.11.2018 vide which the proposed demand was dropped. The said ....

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....ellant itself as the said amount has not been added in the sale value of the goods sold after import but prior to the deposit of differential amount of duty. 3.1 Learned counsel submitted that the department has simply relied upon the fact of the said amount of customs duty to have been reflected in the profit and loss account. This particular observation is highly insufficient to hold that present is the case of unjust enrichment. Book entries of the appellant have wrongly been given more weightage than the Rules and Regulations of the Customs Act, 1962. It is impressed upon that present is not the case of unjust enrichment as has been elaborated by the original adjudicating authority. Commissioner (Appeals) has ignored those finding an....

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....ustoms duty was dropped. Since the proposed amount of customs duty (Rs.4,18,927/-) was deposited by the appellant after the issuance of show cause notice at the stage of investigation, the amount deposited was the amount paid under protest and the same was as good as amount of revenue deposit. I draw my support from the decision of Hon'ble Apex Court in the case of Sooraj mull Baijnath Industries (P) Ltd. v. Commrissioner reported as 2021 SCC OnLine CESTAT 2545, decided on 27-08-2021. Also Hon'ble Allahabad High Court in the case of EBIZ Com Pvt Ltd reported as 2017 (49) STR 389 (All.) observed as follows: "23. It has been consistent view of various Courts that any amount, deposited during pendency of adjudication proceedings or in....

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....t produced any documentary evidence to falsify the same. The said documents are well admissible in evidence. I draw my support from the decision of Hon'ble Delhi High Court in the case of Vishal Video & Appliances Pvt. Ltd. Vs. Union of India reported in 2016 (341) ELT 39 (Del.). The Hon'ble Supreme Court also in the case of Commissioner of Customs, New Delhi Vs. Organan (India) Ltd. reported as 2008 (231) ELT 201 (SC) held that if there is no change in the price post levy of duty and the Auditor's certifies that the incidence of duty has not been passed to the customers, it can safely be presumed that the duty burden has not been passed on to the customers as such the question of unjust enrichment does not arise. 5.4 Commissioner (Appea....