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TMI Blog2016 (1) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... he has not passed on the incidence of duty to their clients. Holding so he allowed the appeal filed by the respondent with direction to the lower authorities to refund the amount to the respondent. The Revenues case is that the appellant had not passed the hurdle of unjust enrichment and has not provided any documents as also that the CVD payable is as per tariff rate. We find that as regards the discharge of CVD, we held that CVD has been correctly discharged @ ₹ 30/- per Sq. Mtr. Hence, on this point, there cannot be any dispute. First appellate authority has categorically recorded that invoices raised by the respondent indicate only discharge of Central Excise duty as per Notification No.6/2003-CE and the amount deposited were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise duty payable by the respondent, who is a 100% EOU while making clearance to DTA. The respondent is a manufacturer of granite and marble slabs and cleared the same to DTA as per the provisions and discharged CVD @ ₹ 30/- per Sq. Mtr., which was the effective rate under Notification No.6/2003-CE dated 01/03/2003 while it is the case of the Revenue that being an EOU the respondent is required to discharge the CVD at tariff rate, i.e. 16% advalorem. The adjudicating authority dropped the proceedings initiated by show-cause notice by relying upon the various case laws. Aggrieved by such an order the Revenue preferred an appeal to the first appellate authority, who concurred with views of the adjudicating authority and upheld the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bar of unjust enrichment is applicable cannot be a ground without any evidence. Further I find that the appellants have produced a CA certificate stating that they have not recovered/claimed the amount of ₹ 36,00.934/- from the customers. The appellants have also produced letters from their customers who have certified that they have paid the CVD amount calculated @ ₹ 30 per Sq. meter and not @ 16% adv. In this situation the Tribunal decision relied upon by the appellants in the case of Alstom Ltd. Vs. CCE, Allahabad (2004 (168) ELT 511) against which the Civil Appeal was dismissed by the Supreme Court (2004 (173) ELT A 235 (SC) is relevant. In the said decision the Tribunal held that bar of unjust enrichment is not applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial pronouncements, we find that the impugned order in this appeal is correct and legal and does not suffer from any infirmity. 7. As regards the Appeal No.E/3950/05, we find that consequent to the order-in-appeal in their favour (in appeal No.E/3284/05), the respondent failed refund claim with the lower authorities for sanctioning the refund of the amount which was paid during the proceedings. The adjudicating authority rejected the refund claim on the ground that the documents which were furnished are not sufficient and they have not passed on the incidence of duty to any other person. On appeal, the first appellate authority reversed the order-in-original and held that the appellant has produced various documents before him and that h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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