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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 ..... . of capital goods during the financial year 2005-06 and 2006-07, as inadmissible for appellant company, engaged in manufacture of sugar and molasses. Appellant reversed the credit of Rs. 1,66,000/- + Rs. 600/- including interest of Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 (26) STR 415 (v) Shipping Corporation of India Ltd. Vs. CCE - 2010 (258) ELT 555 (vi) Laxmi 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... test and refund claim was filed on 22.06.2017. But such payment being made at the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the said amounts from their customers or any other person." Thus 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant to carry over the reversed credit amount in its 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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