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TMI Blog2010 (12) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... t during the period 3-5-2007 to 26-5-2007 they charged excess duty from their buyers and on realizing that they have recovered excess duty, they issued credit note to their respective buyers of the excess duty collected by them and sought refund of the excess duty paid to the department. The same was rejected on two grounds : (a) As the assessment of the said invoices has not been challenged by the appellant by way of appeal. The refund claim cannot be considered as held by the Hon'ble Apex Court in the case of Priya Blue Industries Ltd. v. Commissioner reported in 2004 (172) E.L.T. 145 (S.C.)] and CCE v. Flock (India) Pvt. Ltd. reported in 2000 (120) E.L.T. 285 (S.C.), and (b) The doctrine of unjust enrichment is applicable to the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DR submitted that the lower authorities have rightly denied the refund claim of the appellant holding that as the same has not been challenged by the appellant, the refund claim is not maintainable. The same view has been confirmed by the Hon'ble Bombay High Court in the case of Maharashtra Cylinders Pvt. Ltd. v. CESTAT, Mumbai reported in 2010 (259) E.L.T. 369 (Bom.). He further submitted that the Larger Bench of this Tribunal has held in the case of Grasim Industries (supra), that subsequently, the credit note does not prove that the appellant has borne the duty incidence but the doctrine of unjust enrichment is applicable. Hence the impugned order is to be sustained. 5. Heard both sides and considered the submissions. 6. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the returns filed by the appellant in their self assessment to the appellant or not. In the absence of any communication received by the appellant from the Central Excise Officer, the assessment/decision cannot be challenged. In that circumstances the decision of Priya Blue Industries Ltd. (supra)/Flock (India) Pvt. Ltd. (supra) are not applicable to the facts of this case. 9. As the Larger Bench of this Tribunal has held the doctrine of unjust enrichment is applicable in the case of subsequent issue in credit notes of duty in the case of Grasim Industries (supra), the doctrine of unjust enrichment is applicable to this case. To examine whether the appellant have passed on the duty incidence on their buyer or not, the matter needs ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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