9911796707
TMI Blog2009 (6) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... demand of Rs. 66,62,032/- together with interest and imposed penalty of Rs. 5,00,000/-. 2. Stay Petition No. E/S/323/2009 has been filed by the applicants against the Order-in-Appeal dated 31-12-2008 passed by the Commissioner of Central Excise (Appeals), Mumbai Zone-II. The Commissioner (Appeals), vide the impugned Order held that the refund of Rs. 66,62,032/- is sanctionable. However, since the applicants had already availed suo motu credit of the said amount, the Order-in-Original dated 21-5-2008 passed by the Assistant Commissioner of Central Excise, Bhardup Division is modified to the extent that the refund of Rs. 66,62,032/- is sanctioned but credited to the Consumer Welfare Fund after recovering the same from the applicants. 3. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition precedent to the hearing of the appeal. The applicants deposited the amount of duty alongwith interest as ordered by the High Court, when their prayer for stay was rejected by the Supreme Court. Prima Facie, the amount deposited by the applicants is payment of duty and not pre-deposit under Section 35F of the Central Excise Act, 1944. The Larger Bench of the Tribunal in the case of BDH Industries v. C.C.Ex. (Appeals), Mumbai-I reported in 2008 (229) E.L.T. 364 (Tri.-LB) has held that there is no provision under the Central Excise Act, 1944 and the Rules allowing suo motu taking of credit or refund without sanction by the proper officer and that all types of refund are to be filed under Section 11B of the Central Excise Act, 1944 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claiming a relief of refund, it is necessary for the petitioners/appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss . Prima facie, the applicants have not been able to discharge the onus cast upon them to rebut the presumption that the incidence of the amount has been passed on to the buyers. 6. The applicants have further contended that bar of unjust enrichment is statutorily not applicable in the case of a refund of credit availed on inputs by virtue of clause (c) of the proviso to Section 11B(2). According to them, the amount of Rs. 33,17,170/- was deposited towards proforma credit taken by the applicants and, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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