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TMI Blog2019 (3) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... establish that MRP of the product remained unchanged and the incidence of tax has been shown as receivable in the Balance Sheet. Without taking into account the evidenciary value of the additional evidence like Chartered Accountant certificate, invoice copies, appellant’s own declaration made before- hand, he just gave his opinion that those documents were not sufficient proof. The observation appears to be arbitrary as nothing is forthcoming from his order as to why he disbelieved those documentary evidence or rejected those as insufficient. In a judicial proceeding, order has to be a reasoned one based on judicial analysis where whim and caprice have got no role to play. Refund allowed - appeal allowed - decided in favor of appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. In the memo of appeal and during the course of hearing of the appeal, learned Counsel for the appellant Shri Rajesh Ostwal submitted that appellant had intimated to the department vide their letter dated 27.09.2006 that the payment was made under protest and the incidence of duty was being borne and absorbed by the appellant. He further submitted that invoices produced before the Adjudicating Authorities would show that excise duty was not recovered and MRP of the product was not revised, besides the fact that the amount that had been paid as excise duty were shown as receivable in the Balance Sheet and Chartered Accountant certificate had been produced as corroborative evidence to show that burden of excess excise duty had not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the consideration as to who had borne to the incidence of tax? If it is borne by the appellant and not passed on to any other person- say customer, appellant cannot be regarded as being enriched with refund of such tax component borne by other person. In the instant case, appellant had not only made declaration in writing in advance way back in 2006, that it would not pass the incidence of tax to the customers but also had produced invoice copies as well as Chartered Accountant certificate to establish that MRP of the product remained unchanged and the incidence of tax has been shown as receivable in the Balance Sheet. We fail to find from the order of the Commissioner (Appeals) as to what other kind of proof he was looking for to get h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t certificate by the Commissioner (Appeals). We are, therefore, of the considered view that appellant had passed the test of unjust enrichment and the denial by the Commissioner (Appeals) to allow the refund to the appellant is not supported by the rule of evidence. Hence the order. ORDER 6. The Appeal is allowed and the order of the Commissioner of Central Excise (Appeals), Pune-III. vide Order-in-Appeal No. PIII/VM/79/2010 dated 16.04.2010 is here by set aside. The appellant is entitled to refund claim of ₹ 78,45,431/- along with applicable interest and the respondent-department is directed to pay the same to the appellant within three months from the date of receipt of this order. (Pronounced in court on 12.03.2019) - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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