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TMI Blog2016 (12) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of unjust enrichment and dismissed the appeal of the appellant. 2. The fact of the case is that the appellant cleared the Lubricating Oil through the depot and claimed discount from the basic selling prices and excise duty was charged to the customers on the discounted price. However as per the provisional assessment the duty was paid without considering basic selling price as transaction value that means excise duty was paid on the price without deduction of discount. In the finalization of the assessment vide Order-in-Original No. 06/DYR/08-09 dated 11/9/2008 and No. 27/DYR/08-098 dated 21/10/2008 discount was allowed. Accordingly, in the assessment order it was mentioned that the appellant may file separate refund claim under Section 11B in respect of excess paid duty. The appellant filed refund claim in respect of excess paid duty for an amount of ₹ 39,57,598/-. The adjudicating authority, vide Order-in-Original No. 1020/09-10 dated 17/2/2010 though sanctioned the refund claim but credited the same into the consumer welfare fund under Section 11B of Central Excise Act, 1944 read with subrule (5) and (6) of Rule 7 of the Central Excise Rules, 2002. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) Commissioner of Central Excise, Belgaum Vs. Gokak Mills[2013(295) ELT 392(Kar.)] (d) Commissioner of C. Ex. Mangalore-3 Vs. Solaris Chemtech Ltd[2011(273) ELT 191(Kar.)] (e) Advance Steel Tubes Ltd Vs. Commissioner of C. Ex. Ghaziabad[2014(310) ELT 370(Tri. Del.)] (f) Eastern Shipping Agency Vs. Commr. of Service Tax, Ahmedabad[2013(32) S.T.R. 630(Tri. Ahmd.)] (g) Ranade Co. Vs. Commissioner of Service tax, Ahmedabad[2013(32) S.T.R. 613 (Tri. Ahmd.)] (h) Commissioner of Central Excise, Pune-III Vs. Cummins India Ltd[2008(221)ELT 525 (Tri. Mum)] (i) Radico Khaitan Ltd Vs. Commissioner of Service Tax, Delhi[2014(34) S.T.R. 586(Tri. Del.)] (j) Shree Krishna Nylon Pvt Ltd Vs. Commissioner of C. Ex., Mumbai-III[2015(327) ELT 626 (Tri. Mumbai)] (k) Commissioner of Central Excise, PUne-I Vs. Sandvik Asia Ltd[2015(323) ELT 431 (Bom)] 4. On the other hand, Shri. V.K. Shastri, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that since the appellant had not booked the amount as receivable in the book of account for the year 2007-08 and even though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustomers, without any contrary evidence it cannot be presumed that incidence was passed on to any other person. It is not convincing that burden of an amount related to particular customer can be shifted to any other person. In the present cut throat competitive commercial world, if the goods are sold at a particular competitive price, just for sake of recovery of any liability the same cannot be loaded in the price arbitrarily and charged to any customers. No customer would accept such burden therefore the presumption of the lower departmental authority has no basis that the incidence of excess paid duty was passed on to any other person. I find that the evidence produced by the appellant such as booking of amount in the balance sheet as receivable and the fact that excess paid duty was not recovered from the concerned customer, if these evidences are not sufficient as per the lower authority, then it is onus on the department to bring the evidence to show that incidence of duty has actually been passed on. In the present case no such evidences was brought on record by the department that incidence of excess paid duty was indirectly passed on to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 10 . The first appellate authority, in this case, has held against the appellant only on the ground that the appellant has booked the amount in their Profit Loss Account as expenses and such duty/Service Tax liability having paid subsequently, could not be collected by the appellant from their clients, but arguments have been discarded only on the ground that the appellant has not recorded the payments in balance sheet as receivables . I find that this finding of the first appellate authority is not in consonance with the law inasmuch as Hon ble High Court of Punjab Haryana in the case of Modi Oil General Mills - 2007 (210) E.L.T. 342 (P H), has specifically held that the doctrine of unjust enrichment will not apply to a situation, wherein the assessee is directed to pay the amount and pays the same, on being pointed out by the authorities and he claims the refund of the same when he succeeds in the proceedings. The findings of the first appellate authority that this amount has not been shown as receivables , will also not carry the Revenue s case any further, for the simple reason that the Chartered Accountant has given certificate dated 21-4-2011 which reads a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Chartered Accountant s certificate. 9. I find that the various case laws cited by ld. Counsel are directly on the point. 10. In view of the foregoing and also the binding judicial pronouncements, I find that the impugned order is unsustainable and is liable to be set aside. Ranade Co. (supra) 2 . Heard both the sides. Even though several decisions were cited by both the sides relating to admissibility or otherwise of the refund claim on grounds such as the amount is not a duty but only a deposit; the amount was shown as expenditure in the balance sheet and whether such showing would amount to collection of the same from the customers or not and whether Service Tax was to be shown in the invoice or not etc. I feel that it is not necessary to consider all these decisions to come to a conclusion since in my opinion the facts in this case are clear enough to show that there was no unjust enrichment and refund claim is admissible. Firstly, I am in total agreement with the submission made by the ld. consultant that the appellant was rendering different types of services during the relevant period and wherever the service rendered was a taxable s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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