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TMI Blog2015 (10) TMI 1701X X X X Extracts X X X X X X X X Extracts X X X X ..... een discharged by the appellant. - duty paid under protest and shown as amount receivable in the books of accounts; when the sale price of the finished goods as claimed has not shown any change; it has to be held that doctrine of unjust-enrichment is not applicable in the present case - Decided in favour of assessee. - Appeal No. : E/10220/2013 - ORDER No. A/10852 / 2015 - Dated:- 23-6-2015 - Mr. H.K. Thakur, J. For Appellant : Shri Paritosh Gupta, Advocate For Respondent : Shri G.P. Thomas, Authorised Representative Per : Mr. H.K. Thakur; This appeal has been filed by the appellant with respect to OIA No. OIA-185/2012-AHD-III-/SKS/COMMR-A-/AHD dated 29.11.2012 issued on 03.12.2012, under which OIO No. 11/Assistant Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon the judgment of Hon'ble Supreme Court in the case of CCE, New Delhi vs. Organan (India) Limited - [2008 (231) ELT 201 (SC)]. He also relies upon the case law of VXL Instruments Limited vs. Commissioner of Customs, Bangalore - [2012-TIOL-389-CESTAT-BANG], wherein also a view was taken that unjust-enrichment is not applicable based on order passed by Apex Court in the case of CCE, New Delhi vs. Organan (India) Limited (supra). 3. Shri G.P. Thomas (AR) appearing on behalf of the Revenue argued that unjust-enrichment is involved in the present proceedings as held by the first appellate authority in Para 11 of OIA dated 29.11.2012. Learned AR strongly defended the orders passed by the lower authorities. 4. Heard both sides and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Technical) that the incident of duty has not been passed on to the customers and therefore the assessee is eligible to claim the refund of custom duty whereas Member (Judicial) held it otherwise. The matter was referred to a third Member who agreed with the Member (Technical) holding that the incident of duty had not been passed on to the customers and therefore the assessee is eligible to refund of the customs duty. It is an admitted position that the burden to prove that the customs duty was not passed on to the customers is on the assessee. The Member (Technical) and the third Member on the basis of the following facts : (i) in the invoices, it was clearly mentioned that the sale price did not include the customs duty. (ii) tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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