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TMI Blog2010 (1) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... im on the ground that the refund claim is premature. Held that- incidence of duty not passed on to buyers, no unjust enrichment. Refund allowed. - E/675/2008 and E/807/2009 - A/106-107/2010-WZB/MUM/C-IV/SMB - Dated:- 19-1-2010 - Shri Ashok Jindal, Member (J) Shri S.S. Katiyar, SDR, for the Appellant. Shri S.B. Awate, Consultant, for the Respondent. [Order]. - Revenue is in appeal in this case against the order of the Commissioner (Appeals), wherein he has held that amount of duty paid by the appellants "under protest" in the absence of any lawful demand confirmation deserves to be returned to the respondents. 2. The brief facts of the case are that the respondents are engaged in the manufacture of excisable goods namely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) considered the submissions of the respondents and after verifying the records placed before him, he observed as under and allowed the appeal of the respondents : - "I have carefully gone through the records of the case and find that the appellant has paid the differential duty amount at the instance of the Department during Preventive unit's visit and consequent investigations under protest. The lower authority has observed in his Order-in-Original "since the decision of the assessee's protest is under process and is not yet reached finality, the instant refund claim is premature hence rejected." A show-cause notice was required to be issued, within one year of such visit but no demand notice has been issued, even within five years, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llarpur Industries Ltd. v. CCE, Bhubaneshwar - 2005 (184) E.L.T. 67 (Tri-Del) 4. On the other hand, Shri S.B. Awate, learned Consultant for the respondents submitted that it is not a case that the duty incidence has been passed on at the time of clearance of the goods. It is only a case of denial of exemption Notification, against which the respondent paid the duty under protest on which the supplementary invoices were issued, later on which were cancelled and the buyers have not taken the credit of the same. In that event, the duty incidence has not been passed on to the buyers and doctrine of unjust enrichment is not applicable. He submitted that the respondents are entitled to claim the refund and the impugned order be upheld. 5. Hea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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