9911796707
TMI Blog2014 (3) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... documentary evidence to show that the incidence of duty has not been passed onto the customers. Also the adjudicating authority has mentioned about the accounting treatment given to duty paid on expenditure and not as receivable and observed that hence there is chance of it being passed on indirectly. - Commissioner (Appeals) has examined the issue of bar of unjust enrichment on basis of evidence therefore, I hold that the respondent has passed of unjust enrichment as they have not passed the duty burden on the customers - Decided against Revenue. - E/3284/05-Mum - Final Order No. A/109/2014-WZB/C-IV(SMB) - Dated:- 3-1-2014 - Ashok Jindal, J. For the Appellant : Shri Ahibaran, Addl. Commissioner (AR) For the Respondent : Ms An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the respondents are entitled for refund claim but the adjudicating authority rejected the claim on the ground that the respondent has failed to pass the bar of unjust enrichment. Against the said order the respondent filed an appeal before the Commissioner (Appeals) who examined the issue of bar of unjust enrichment and after examining the copy of the invoices along with PLA and relying on the C.A. certificate produced by the respondent, allowed the refund claim. Aggrieved by the said order the Revenue is before me. 3. The learned A.R. appearing for the Revenue submits that the impugned order is required to be set aside as the respondents are not entitled to the benefit of Notification NO. 6/2002 dated 01.03.2002 and they have failed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is whether the refund claim is hit by the doctrine of unjust enrichment or not. In the instant case department contended that duty paid can very well be recovered subsequently by issuing supplementary invoices and/or debit notes and hence took the stand that unjust enrichment is applicable even if the duty is not shown on the invoices at the time of clearance. In this regard, I find that tribunal in the case of Indian Metals Ferro Alloys Ltd.- 2000 (125) ELT 943 which was also affirmed by the Supreme Court vide order dt. 17.7.1997 (2001 (127) ELT A 162(SC)) has allowed the party's appeal on the ground that invoices are the best evidence to see whether or not burden of duty has been passed on by the manufacturer. The appellants have p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05 (67) RLT 291 has held that principle of unjust enrichment is not applicable since the amount was kept in account as sale expenses and was deducted out of profit. There is therefore no merit in the stand of department. The bar of unjust enrichment is therefore not applicable. The refund of Rs. 36,00,934/- is therefore admissible to the appellants. 7.2 In view of the above, I find that the learned Commissioner (Appeals) has examined the issue of bar of unjust enrichment on basis of evidence therefore, I hold that the respondent has passed of unjust enrichment as they have not passed the duty burden on the customers. Accordingly, I do not find any infirmity in the impugned order and the same is upheld. The appeal filed by the Revenue is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
