2004 (5) TMI 368

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..... , for the Respondent. [Order per : P.S. Bajaj, Member (J)]. -  In this appeal filed against the impugned order-in-appeal dated 22-10-2003, the issue relates to the applicability of principle of unjust enrichment to the refund claim of the appellants. 2. The learned Counsel has contended that since duty was paid after the clearance of the goods when the annual capacity of production of .....

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..... ined by the Commissioner vide order dated 18-12-98 at Rs. 58 lakhs per month w.e.f 16-12-98 provisionally. They however paid duty under protest as they contested the inclusion of the galleries in the determination of their annual capacity of production. That provisional order was finalised by the Commissioner vide assessment order dated 16-4-99 vide which they were required to pay Rs. 61,68,000/- .....

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..... e refund of the excess duty paid after that date, has to be governed by the principle of unjust enrichment as the same was paid every month when simultaneously clearances were also made by the appellants. Therefore, the appellants were required to prove that the incidence of duty had not been passed on by them to their buyers. But they have failed to do so. Even if it is taken that duty was paid b .....

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