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TMI Blog2017 (4) TMI 1123X X X X Extracts X X X X X X X X Extracts X X X X ..... he proof of payment of duty. As regards unjust enrichment, we find force in the argument of the ld. counsel that the goods were produced and sold without payment of duty in the year 1999 whereas the excise duty was paid in 2002 due to the demand proceedings was initiated by the department. There is no question of passing of the said duty by the appellants to the buyer of such goods. Appeal allowed - decided in favor of appellant. - E/1103/12 - A/86874/17/SMB - Dated:- 17-4-2017 - Shri Ramesh Nair, Member (Judicial) Ms. Anjali Hirawat, Advocate for the appellant Shri S.V. Nair, Asstt. Commissioner (AR) for the respondent ORDER The fact of the case is that ONGC sold scrap to the appellants without payment of duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Order-in-Original, the appellants filed appeal before the Commissioner (Appeals) who held that there is no dispute in the payment of duty by ONGC and the same was set aside by the Tribunal vide order dated 05.01.2011 and the appellants is entitled to claim the refund only if the duty had been borne by them and the incidence of said duty had not been passed on by them to any other person. The Commissioner (Appeals) held that there is no evidence that the appellants have borne the incidence of duty paid by ONGC. Accordingly, the appeal was rejected and the Order-in-Original was upheld. Therefore the appellants are before me. 2. Ms. Anjali Hirawat, ld. counsel on behalf of the appellants submits that the appellants had given the bank guar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T) vii) Lorenzo Bestonso 2015 (315) ELT 478 (T) viii) CCE vs. Servalakshmi Paper Boards Pvt. Ltd. 2011 (263) ELT 476(T) 3. Shri S.V. Nair, appearing on behalf of the revenue submits that duty paying particulars are related to payment made by ONGC and not by the appellants, therefore there is no duty payment in the name of the appellants. As regards unjust enrichment the appellants could not submit any document by which it can be proved that the incidence of duty was not passed on to any other person, particularly in the fact that the excise duty was deposited by ONGC and not by the appellants. 4. I have carefully considered the submission made by both sides. I find that from the documents referred to by the ld. counsel th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accounting treatment given by the appellants to this amount of ₹ 8,44,500/- as ONGC (excise duty received) under the head of loans advances in the balance sheet of the appellants clearly shows that this amount was not passed on to any other person. In this regard, the appellants also gave an affidavit wherein they have stated that the amount of ₹ 8,44,500/- was not recovered from the customer or any other person. 6. On the basis of the evidence produced by the appellants there is no dispute regarding the proof of payment of duty as well as to the fact that the incidence of such duty has not been passed on to any person. As per my above discussion, the impugned order is not sustainable, hence the same is set aside. The appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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