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TMI Blog2009 (3) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents are on record. The appeal is, therefore, taken up for disposal on merits on the basis of the material available on record and the arguments advanced by the learned S.D.R. 3. The short point involved in the appeal is whether the refund claim of Rs. 3,16,239/- filed by the respondents i.e. M/s. Shetkari S.S.K. Ltd., Killari, Tal. Ausa, Latur, can be rejected on the ground of unjust enrichment. The Commissioner (Appeals) held that there is no merit in the rejection of the impugned claim on the ground of unjust enrichment by the Assistant Commissioner. Hence, he has set aside the Order-in-Original dated 7-1-2000 passed by the Assistant Commissioner of Central Excise, Nanded and allowed the appeal with consequential relief as per law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establish by documentary evidence that the incidence of excess duty had not been passed on to any other person. It may be true, but the Adjudicating Authority ought to have considered the evidence contained in the letter No. FCI/Sur/Levy-Loan/99 dated 17-11-1999 issued by the Assistant Manager (Sur) FCI, Solapur wherein it was certified that for the total quantity of 9583 bags cleared by M/s Shetkari SSK as per Release Order No. SC-2/97-98/AO/Nov/FCI dated 28-10-98; the FCI had paid excise duty @ Rs 52/- per bag only. It is also not disputed that the entire quantity of sugar covered in the said release order had been sold out by the appellants to the FCI. The net duty paid by the FCI on the entire quantity of 9583 bags of Sugar was @ 52/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price of 9583 qtls worked out to Rs. 1,04,07,808.81 but the applicant vide its letter dated 28-10-99 admitted that they had received total payment of Rs. 1,16,45,379.29 which worked out in excess. In this regard the assessee pleaded that this excess payment is related to the quantity supplied earlier to 19-11-98. But assessee did not substantiate this fact with corroborative evidence. 7. I have examined the position. I find that the respondents received release Order No. SC-2/97-98/AO/Nov./FCI dated 28-10-98 for 9583 quintals of levy sale sugar. For allotting this levy sale release quantity, the sugar was taken from the free sale portion of the sugar factories on loan basis. Inadvertently, the respondents paid the Central Excise duty at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is for your information and necessary action please. 9. From the perusal of the above letter, it is evident that the F.C.I., Solapur have paid excise duty @ Rs. 52/- per bag on 9583 bags. Release Order No. is also quoted in the aforesaid letter. The Revenue has not produced any contrary evidence to show that the duty @ Rs. 85/- per bag as indicated in the invoices in dispute has been reimbursed by FCI Solapur or by the customer or consignee to the respondents in relation to 9583 bags. 10. The respondents every month receive levy sale release orders for other States and sugar is supplied to the customers nominated by F.C.I. Solapur. The respondents present their bills to F.C.I. Solapur and received payment from them. While claiming the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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