Custom, Excise & Service Tax Tribunal
M/S. Shiva Alloys Pvt. Ltd vs Cc (Icd) New Delhi on 3 January, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
COURT NO. III
Customs Appeal No. 182, 200/2009-CU[DB]
[Arising out of Order-In-Appeal No. ICD/09-10/2009 dated 15.01.2009 passed by CC (ICD), New Delhi]
For approval and signature:[
Honble Ms. Archana Wadhwa, Judicial Member
Honble Mr. Rakesh Kumar, Technical Member
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
M/s. Shiva Alloys Pvt. Ltd. Appellant
Vs.
CC (ICD) New Delhi Respondent
Coram: Honble Ms. Archana Wadhwa, Judicial Member Honble Mr. Rakesh Kumar, Technical Member Appearance:
None for the Appellants Shri R. Puri, AR for the Respondent Date of Hearing: 03.01.2014 FINAL ORDER NO._50033-50034/2014_ Per Ms. Archana Wadhwa:
Nobody appeared for the appellant we have accordingly heard learned DR and have gone through the impugned orders.
2. The appellants imported three consignments of Electrolytic Manganese Metal and filed three bills of entries. The declared value was enhanced by the custom authorities and the appellant cleared the goods on payment of duty at the enchanced value.
3. Subsequently enchanced value was challenged before the Commissioner (Appeals), who set aside the same vide his order dated 25.03.2008 and allow the appeal. As a consequence the appellant became entitled to refund of duty paid in excess to the time of Rs. 69,717/- and Rs. 87,882/-.
4. It is seen that the said refund claim stands rejected on the ground of non-submission of original documents as also on the ground of unjust enrichment. While rejecting the appeal, Commissioner (Appeals) has observed that the imported goods have been used by the appellant in the further manufacture of ingots. In terms of the decision of the Honble Supreme Court in the case of M/s. Solar Pesticide Pvt. Ltd., the provisions of unjust enrichment get attracted and it is for the assessee to prove that the excess duty paid at the time of import of the goods, was not recovered by them from their customers.
6. We find that legal issue stand settled by the declaration of law by the Honble Supreme Court in the case of Solar Pesticides. However, the assessee is within his rights to establish that the excess duty was not recovered by him from the customers of the final product i.e. ingots, in the manufacture of which such imported goods were used. As such, we deem it fit to set aside the impugned order and remand the matter to original adjudicating authority for examining the unjust enrichment angle, after affording a reasonable opportunity to the assessee. The issue of non filing of original documents in support of refund claim, would also be looked into by the original adjudicating authority. Both the appeals are disposed of in above terms.
(Pronounce in the open Court) (Archana Wadhwa) Member (Judicial) (Rakesh Kumar) Member (Technical) Jyoti* ??
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