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TMI Blog2016 (3) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of actual transaction have not been produced. From the terms of contract it may appear that there was no unjust enrichment, but by itself it is not a sufficient evidence. The appellant should produce some reliable evidence of actual transactions as the terms of contract can only point at the possibility of unjust enrichment or otherwise but can not be treated as evidence. As the onus of proving that there was no unjust enrichment was on appellants and they have failed to discharge it. Also as per the decision of Hon'ble Supreme Court in the case of CCE Vs. Flock (India) Pvt. Ltd [2000 (8) TMI 88 - SUPREME COURT OF INDIA], one is necessarily required to challenge the assessment orders to be eligible to claim refund but the appellant a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on but to clear on payment of duty. As soon as they obtained the said certificates they filed refund claims. They argued that the terms of contract indicate that the burden of duty was not passed on. They argued that the once Commissioner (Appeals) himself has recorded that findings, he cannot then hold that there was unjust enrichment. They also argued that reliance can not be placed on the case of CCE Vs. Flock (India) Pvt. Ltd. - 2000 (120) ELT 285 (SC) as in that case the issued involved as classification of goods. He argued that instead reliance should be place on decision of Hon'ble Supreme Court in case of Raj Industries 2000 (120) ELT 50 (SC) and in case of Bhadrachalam Paperboards 1999 (106) ELT 290 (SC). 3. Learned A.R. rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 962 a claim for refund can be made by any person who had (a) paid duty in pursuance of an Order of Assessment or (b) a person who had borne the duty. It has been strenuously submitted that the words in pursuance of an order of Assessment necessarily imply that a claim for refund can be made without challenging the Assessment in an Appeal. It is submitted that if the assessment is not correct, a party could file a claim for refund and the correctness of the Assessment Order can be examined whilst considering the claim for refund. It was submitted that the wording of Section 27, particularly, the provisions regarding filing of a claim for refund within the period of 1 year or 6 months also showed that a claim for refund could be made even t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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