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TMI Blog2012 (9) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... llant. Shri R. Nagar, SDR, for the Respondent. [Order]. - This appeal is filed by M/s. Sabic Innovative Plastics, Vadodara against the order of Commissioner (Appeals) dated 28-12-2010. Briefly stated, the facts are the refund of Rs. 5,03,011/- arose out of the reduction of fine and penalty ordered by Commissioner (Appeals). The claim was sanctioned but credited to the consumer welfare fund which was upheld by Commissioner (Appeals). 2. The short issue to be decided is whether the doctrine of unjust enrichment is applicable in this case where fine and penalty has been reduced which have been paid by the appellant in pursuance of the earlier order. The fact of payment of redemption fine and penalty as per the earlier order is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edemption fine and therefore the reduction on the ground of unjust enrichment is not valid. Commissioner (Appeals) agrees with this contention. If it is so, I am of considered opinion that the doctrine of unjust enrichment will not be applicable in the case and the sudden diversion in the finding, contrary to the facts and his earlier observation do not have any support of facts and law. 4. On the basis of various case laws quoted by the appellants as well as the Revenue I am of the considered opinion that if it is not substantiated that the appellant has not passed on the burden of duty, penalty and fine they should get the benefit by way of refund. The question of unjust enrichment in such cases should not arise. My view as stated emana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nrichment was answered by the Hon ble Tribunal in its judgment in the case of Offshore Hook-up Cons. Services Pvt. Ltd. v. C.C. (Import), Mumbai [2009 (244) E.L.T. 135 (Tri. - Mum).] it was held that; Where the claim is for refund of an amount of duty under Section 27 of the Customs Act or under Section 11B of the Central Excise Act, the burden of proof stands statutorily fixed on the claimant. Where the claim is for refund offline or penalty, the burden of proof connected with the doctrine of unjust enrichment has to be discharged on equitable principles. A duty is an indirect tax and therefore its burden can possibly be passed on to others. This is the reason why the statutes have raised the presumption in favour of the Revenue there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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