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TMI Blog2009 (4) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of the case are that M/s. Crompton Greaves, Nashik (the respondents herein) are registered with the Central Excise Department for the manufacture of excisable goods falling under Chapter 85. They had paid the duty amounting to Rs. 11,87,875.62 at the investigation stage of the case booked against them, being the duty alleged to be payable on the amount of excess freight and insurance charges and modification charges recovered by them from their customers. On adjudication of the case, a penalty of Rs 2.50 lakhs was imposed on them vide O/O No. 28/98 dated 14-8-1998, which also they had paid. Subsequently, the adjudication order passed by the Commissioner, Central Excise & Customs, Aurangabad, was contested by them before the CEGAT, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; the OIO was passed on the different ground viz. ground of limitation, which was not incorporated in the show cause notice. 4. The following are the 'Grounds of Appeal' filed by the Revenue :- (i) the respondents had not paid the amount under protest during investigation stage i.e. on 12-12-1988, 28-1-1989, 11-2-1989 & 12-2-1989 vide entries 1261, 1596, 1730 & 1731 respectively whereas, the refund was filed on 11-11-1998 which is clearly time barred as per Section 11B of Central Excise Act, 1944. (ii) the claim is hit by the unjust enrichment clause as the respondents had not produced the documents evidencing that the amount claimed by them as refund was not recovered from their customers. 5. We have examined the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irrespective of whether the amount to be refunded is duty or otherwise. Although the respondents have referred to the Order-in-Original No. 18/2004, dated 16-3-2004 passed by the Assistant Commissioner in their case in which he has held, based on the Chartered Accountant's Certificate dated 17-5-1999, that the amount of Rs. 14,19,208/- has not been passed on to their customers yet we are of the view that the Chartered Accountant's certificate is not the conclusive proof of having not passed on the incidence of duty to the customers. It is the 'incidence of duty' and not the duty as such which is required to be shown to have not been passed on from the sale record, balance sheets and other related documents etc. as hold by the Hon'ble Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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