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TMI Blog2018 (12) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... ed within the prescribed period of limitation. Unjust enrichment - Held that:- It can be noticed that referring to the Balance Sheet of 2005-06 & 2006-07 and for the financial year of 2015-16 & 2016-17 the Adjudicating Authority has given his findings at para 27 that the appellant had not shown the amount of refund claim of ₹ 1,66,600/- as receivable amount in their Balance Sheet and the Chartered Accountant has not certified that the said amount has been shown in the Balance Sheet to be ‘receivable’. Therefore while holding that doctrine of unjust enrichment is applicable to all the cases of refund irrespective of the amount as refund of duty or otherwise - learned Commissioner (Appeals) has accepted the Chartered Accountant certi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant reversed the credit of ₹ 1,66,000/- + ₹ 600/- including interest of ₹ 63,191/- on 18.11.2008 and 24.03.2011 but was put to show-cause vide notice dated 31.03.2011 for recovery of the said amount along with interest and penalty that culminated in passing of Order-in-Original dated 16.11.2011, confirming the demand and penalty of equivalent amount. The appeal was preferred before the CESTAT, West Zonal Bench, Mumbai that was allowed vide final order No. A/85139/17/SMB dated 07.12.2016. Consequent upon the final order passed by the Tribunal, appellant filed refund application for ₹ 1,66,600/- on 22.06.2017 but the same was refused by the Assistant Commissioner of Central Tax, Solapur and unsuccessful attempt made be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axmi Gayatri Iron Steel P. Ltd. Vs. CCE - 2017 (358) ELT 462 (vii) Icomm Tele Ltd. Vs. CCE 2016 (6) TMI 779 To substantiate that if the amount deposited is shown in the assessee s books of account as expenditure and not as receivable, incidence of duty cannot be said to have been passed to make refund claim hit by unjust enrichment as assessee had submitted to such demand during the investigation only with the intention to reduce the litigation. He further argued that no specific instances has been shown to substantiate that the amount was being passed on others and refusal to accept Chartered Accountant s certificate establishing such non-passing of incidence of tax burden on others by Commissioner (Appeals) is improper for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insistence of the Department cannot be considered as time barred and provisions of Section 11B are not applicable in the present case. However, he has not dealt with Section 11B explanation (EC) whereby the period of one year should be computed from the date of judgment decree, order or direction of the Appellate Tribunal. This being not challenged before the Commissioner, no finding is required in this aspect that refund was filed within the prescribed period of limitation. 6. Now coming to the other grounds of rejection i.e. applicability of the doctrine of unjust enrichment to the case of the appellant, it can be noticed that referring to the Balance Sheet of 2005-06 2006-07 and for the financial year of 2015-16 2016-17 the Adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the aforesaid decision of Apex Court, it only confirms the first case i.e. incidence of duty has not been passed on directly, but it completely fails to confirm that the incidence of duty has not been passed on indirectly. As the said amount has been booked under expenditure and not booked under receivables in the books of account, it clearly shows that the amount claimed as refund is also a part of costing of the final product and thus the incidence has been indirectly passed on to another person. Therefore the present claim does not pass the test of unjust enrichment in terms of ratio laid down by the Apex Court. 7. On a close scrutiny to the above para, it appears that learned Commissioner (Appeals) has accepted the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts Balance Sheet as receivable for more than 11 years; (iv) Amount reflected in the Balance Sheet as expenditure does not ipso facto absorb the same amount in the cost component of the subsequent manufacturing process and it could never be added in the final product which was cleared in the financial year preceding 2007; (v) It is not invariably true that when any amount is shown as expenditure or any expenditure is required to be made, the same has to be absorbed in costing of the final product unless there is a proof that pricing of the final product has increased on that score, since there are various other mechanisms/procedures available before the manufacture to observe the cost, say by way of reducing profit margin of its sale, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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