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TMI Blog2016 (6) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... nd subsequently no amount either before or after payment has been recovered from the Customers towards duty. The invoices issued by the appellant would obviously not shown any duty element and, therefore, question of showing the recovery of duty separately does not arise. In view of the above, the C.A. certificate has no evidential value. If the amount has been shown as expenditure in the Profit and Loss account, it amounts to passing of the incidence of duty to the customers. Unjust enrichment is a question of fact and the said order does not disclose as to what was the nature of document which was produced and why the burden cast on the assessee was discharged by them. Thus find that the appellant has not been able to discharge the bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to assert that the burden of duty has not been passed on. He relied on decision of the Assistant Commissioner in similar circumstances where another similar placed assessee was granted relief. Learned Counsel for the appellant also relied on the Profit and Loss statement, wherein he claimed that the said amount of refund has been shown as a loss. 3. Learned AR relied on the decision of Hon'ble Supreme Court in the case of Birla Corporation Ltd. 2007 (208) ELT 481 (SC) to assert that even when duty was paid under protest, the provisions of unjust enrichment would be applicable. He also relied on decision of the Tribunal in the case of Binakia Synthetics Ltd. 2013 (294) ELT 156 (Tri-Ahmd.) to assert that mere C.A. certificate is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show the duty element. The duty is calculated on the basis of number of machines installed and the duty element is recovered by the assessee as part of the cost of production. There is no separate entry with respect to the duty amount in the invoices. The certificate of C.A. states that the above mentioned firm had made the payments as per the demand raised by the Government Department and subsequently no amount either before or after payment has been recovered from the Customers towards duty. The invoices issued by the appellant would obviously not shown any duty element and, therefore, question of showing the recovery of duty separately does not arise. In view of the above, the C.A. certificate has no evidential value. 4.1 The secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant has borne the incidence. Similar argument has been negated by the Hon ble Apex Court in Allied Photographic India Ltd. [2004 (166) E.L.T. 3 (S.C.)], wherein it was held that uniformity in price before and after the assessment does not lead to the inevitable conclusion that incidence of duty has not been passed on to the buyer as such uniformity may be due to various factors . Therefore, in the present case, the appellant HPCL has failed to cross the bar of unjust enrichment also and hence they are not eligible to claim the refund. Therefore, if the amount has been shown as expenditure in the Profit and Loss account, it amounts to passing of the incidence of duty to the customers. The appellant has also relied on the decision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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