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TMI Blog2014 (2) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the capital goods in question. 2. Though the appeal was admitted on four substantial questions of law, for the purpose of disposal, we are inclined to consider the first substantial question of law, which reads as follows : "Whether the Tribunal was right in law in holding that the Doctrine of Unjust Enrichment under Section 27 of the Customs Act, 1962, is not applicable to the claim for refund of duty of customs paid on the capital goods?" 3. The first respondent (hereinafter referred to as "the assessee") claimed MODVAT credit on the capital goods. The original authority found that only the balance sheet as on 31-3-2001 was filed and it showed under the heading "Deposit & Advances" an amount of Rs. 1,53,57,832/-, which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nrichment would not be applicable to the claim of refund of customs duty paid on the capital goods. 6. Though the original authority and the appellate authority have clearly observed that no documents were produced before them to prove that there was no case of unjust enrichment, the fact remains that the CESTAT has not considered the said aspect and proceeded to hold that there was no necessity to prove that there was no unjust enrichment in case a claim is made under Section 27 of the Customs Act. 7. The Supreme Court in Sahakari Khand Udyog Mandal Ltd. v. Commissioner of Central Excise and Customs, 2005 (181) E.L.T. 328 (S.C.) held that in respect of any claim regarding refund, the party has to prove that the duty burden was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not contain any averment with respect to the materials produced by the assessee to prove that there was no case of unjust enrichment and the duty burden has not been passed on, we are of the view that opportunity should be given to the assessee to produce materials. 9. Accordingly, the impugned order is set aside and the matter is remitted to the original authority for fresh consideration. It is open to the first respondent-assessee to produce materials in support of their contention that the duty burden has not been passed and as such there was no case of unjust enrichment and they are entitled to the refund. The assessing authority is directed to consider the records so produced by the assessee and decide the issue of refund a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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