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TMI Blog2016 (6) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... duty for the past period and not issued the excise invoices but had issued only the commercial invoices. In respect of other payment of duty the appellants have claimed that they have not recovered the same from the customers. The appellants have also produced Chartered Accountant's certificate in the Tribunal, the same was not produced before the Commissioner (Appeals). Thus find that while the impugned order deals with the second situation, it is silent about the first situation. In view of the above, upheld the impugned order so far as it relates to the clearances made on payment of duty. However, in respect of refund claim on the duty paid for the past clearances, the impugned order is set aside and the matter is remanded to the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e before this Tribunal. 2. The learned Counsel for the appellants argued that there is no case for unjust enrichment. He divided the refund claim into two categories. The first category being the category in respect of which they have paid the duty after clearances under protest and the second category being the category where the duty was paid at the time of clearances under protest. In respect of second category he argued that the price of goods at which the same was sold remains the same before they started paying the duty and after they started paying the duty. Therefore, the MRP of the goods remains the same. Under these circumstances it cannot be said that they had collected the said duty from the customers. He argued that under si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the appellant. He also argued that the Hon ble High Court of Bombay in its decision in the case of CCE, Pune Vs. Rocket Engg. Corporation Ltd., - 2014 (306) ELT 33 (Bom) had similar circumstances held in their favour. 3. The learned AR for the Revenue relies on the impugned order. 4. I have gone through the rival submissions. I find that the impugned order in para 15 16 records as under: I have carefully gone through the findings of the original adjudicating authority. The main evidence that has been presented by the original adjudicating authority is the fact that here was a difference in price (transaction value) indicated in the commercial invoice and the excise invoice. While commercial invoice showed a price of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al invoices did not include the duty element as contended by the appellant then the price in the excise invoice should also have been the same. The findings of the original adjudicating authority clearly explains the difference in the transaction value shown in the commercial and excise invoices issued by the appellants. I am therefore of the view that the documents issued by the appellants would show that price indicated in the commercial invoice was a cum duty price inclusive of excise duty and therefore was passed on to the buyer of such goods. I therefore pass the following order. I uphold the order of the original adjudicating authority and disallow the appeal From the above, it is clear that the appellants, during the period when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of clearance the duty payment has been shown in the invoice, there is no doubt that the burden of duty has been passed on to the customers in such cases. The provisions of unjust enrichment have been rightly invoked in such cases. 6. In respect of first category mentioned by the learned Counsel where they have paid the duty under protest for the past period, the facts are slightly different. In that case the appellant had paid the duty for the past period and not issued the excise invoices but had issued only the commercial invoices. In respect of other payment of duty the appellants have claimed that they have not recovered the same from the customers. The appellants have also produced Chartered Accountants certificate in the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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