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TMI Blog2014 (11) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the incidence of duty has been passed on to the buyer is the issue which has to be decided in the light of the documents submitted and in the light of the decisions already cited supra. We, therefore, are inclined to remand the matter back to the Original Authority to re-consider the issue in the light of the documents said to be filed by the appellant before the Commissioner of Central Excise (Appeals) and in accordance with the law as decided - Matter remanded back - Decided in favour of assessee. - Civil Misc. Appeal No.1761 of 2007 - - - Dated:- 25-9-2014 - R. Sudhakar And G. M. Akbar Ali,JJ. For the Petitioner : Mr. Arun Kurien Joseph For the Respondent : Mr. A C Mani Bharathi, Standing Counsel JUDGMENT ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t issued a show cause notice dated 29.12.1986 on the appellant to show cause as to why the claim of refund should not be rejected, more particularly with regard to the ground on doctrine of unjust enrichment. 3. After going through the records and the reply filed by the assessee, the Original Authority held that the intermediate products on which duty has been wrongly paid are not the goods sold as such in the market and is used in the manufacture of paper ring tubes and hence the intermediate products are used as part of paper ring tubes and paper containers. Thereafter, the Original Authority passed an order of refund, however, based on the statement of one Thomas Zacheria, Vice President of the company, the Original Authority denied r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainer includes the value of ferrules and caps which is inclusive of excise duty it is proved that the duty paid on ferrules and end caps have been passed on to the consumer, in other words the incidence of duty on these products would go into the cost of the final product and thus the incidence of duty was passed on and recovered from the ultimate buyers at the time of sale of the finished goods. Hence, it is hit by the doctrine of unjust enrichment, under Section 11B(2) of Central Excise rules, 1944. Hence, I pass the following order. ORDER I sanction a refund of ₹ 1,52,092.99 under Section 11B(1) of Central Excise Act, 2002. However, the refund amount of ₹ 1,52,092.99 is credited to the Consumer Welfare fund under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim.' In view of what has been stated above, the impugned Order-In- Original is set aside and the Deputy Commissioner of Central Excise, Virudhunagar Division is directed to decide the issue of refund after verifying the veracity of the claim of the appellants that the prices have remained constant prior to the refund period, during the refund period and after the refund period. The appeal is disposed of accordingly. 5. Aggrieved by the order of the Commissioner of Central Excise (Appeals), the Revenue pursued the matter before the Tribunal. The Tribunal placed reliance on the decisions of the Supreme Court in the case of Union of India V. Solar Pesticide Pvt. Ltd. reported in 2000 (116) E.L.T.401 (S.C.), Commissioner of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pointed out to the specific finding of the Original Authority that no evidence was produced by the Authorised Person of the appellant before the Original Authority. Hence, without any evidence, the benefit of refund could not be granted to the appellant/assessee. 9. Heard learned counsel appearing for the appellant and learned Standing Counsel appearing for the respondent and perused the materials placed before this Court. 10. It is not in dispute that the assessee had produced some materials before the Commissioner of Central Excise (Appeals) seeking refund. Those documents are not before us. In any event, the question whether the incidence of duty has been passed on to the buyer is the issue which has to be decided in the light of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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