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TMI Blog2012 (9) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... edited it to the consumer welfare fund. Against this order (which was a de novo order) the appellant filed an appeal to the Commissioner (Appeals) and Commissioner (Appeals) in his order upheld the order of the adjudicating authority. Commissioner (Appeal's) findings in this regard are as follows : "The Chartered Accountant's certificates without supported by relied documents, therefore, cannot be considered as sufficient evidence to rebut the presumption that incidence of duty has been passed on. In the case of ERBI Engineering Ltd. v. CC, Chennai [2009 (239) E.L.T. 493 (Tri.-Chennai)], the Hon'ble CESTAT has held that CA certificate furnished by the appellant not accepted in absence of documents relied upon. Though this case relate to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty has been passed to the buyer. He argued vehemently that in this context the principles of unjust enrichment or question of double benefit will not arise. 4. The short issue to be decided in this case is whether the refund claim will attract the provisions of unjust enrichment or not. As far as the eligibility of the refund is concerned, the Revenue entertains no doubt. The specific exemption under Notification No. 102/07 is different from an ordinary refund claim and so long as the conditions under this notification are satisfied the appellant will be eligible for the refund. On going through the facts of the case, I find that the appellant has satisfied the conditions prescribed under this notification. 5. Board vide its Cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired under the notification. I have also perused some of the sales invoices. It is seen that no duty (SAD) is charged or recovered by the appellant from their buyers. Issue is therefore sufficiently proved that the incidence of duty has not been passed on to the buyers nor there is any evidence to that effect. The Tribunal in the case of STP Ltd. v. Commissioner of Customs (Import), Mumbai reported in 2011 (267) E.L.T. 110 (Tri.-Mumbai) in a similar case has held as follows : "The only issue is that the bar of unjust enrichment is applicable to the facts of this case when the appellants have filed a refund claim of SAD paid by them at the time of import of goods which were cleared by them on payment of VAT. As the appellants have obtaine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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