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TMI Blog2019 (8) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... ards interest to its Profit Loss Account in its financial statement under sub-heading interest and others and it had admitted that it had considered interest component for pricing purpose of the final products. While according to my approval to such test to be applied to refund of interest paid prior to 2008 as per the ratio of Mafathlal case, I failed to agree with the Commissioner (Appeals) that only by showing the amount in the Profit Loss Account as expenditure toward interest payment, cost of the product cannot go up by itself unless it is specifically infused for the said purpose. Further no statement of the appellant or its representative is found on record to establish that payment made towards interest had been absorbed in the cost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three instalments, last one being paid on 1-12-2007. After completion of adjudication process consequent upon confirmation of the aforesaid credit that was reversed in appeal, the matter got settled by the CESTAT who confirmed the Commissioner's order-in-appeal passed on 26-3-2009 allowing such credit in favour of the appellant. Refund claim of appellant, in respect of the amount of credit being reversed, was allowed by the Asst. Commissioner, Central Excise vide order-in-original dated 22-1-2010 but refund of interest was denied on the ground of unjust enrichment that was also affirmed by the Commissioner (Appeals) vide order-in-appeal dated 13-8-2010. Legality of such order is assailed in this appeal. 3. In the memo of appeal and during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive of subsequent amendment of section -11 B of the Central Excise Act to include interest component during the relevant period, refund can only be claimed if the appellant would be able to show that it had paid the amount for which relief is sought and cannot derive undue benefits after passing on the burden to the consumers for which the order passed by Commissioner (Appeals) rejecting such refund of interest needs no interference by the Tribunal. 5. Heard from both the sides at length and perused the case record. The finding of the Commissioner (Appeals) that appellant has not passed the test of unjust enrichment is based on the fact that appellant had charged the amount paid towards interest to its "Profit & Loss Account" in its finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, since there are various machanisms available before the manufacturer to absorb the cost say by way of reducing profit margin of its sale, overhead expenditures of the company etc. in the instant case appellant had justified on record as to why the same amount has been shown in the Profit & Loss account whereby Appellant Company's profit was proportionately reduced. I am therefore of the considered view that incidence of duty as interest paid has not been passed by the appellant to any other person to bring the case into the purview of unjust enrichment. Hence the order. ORDER 6. The appeal is allowed and order passed by Commissioner is hereby set aside. The Appellant is entitled to get refund of ₹ 11,45,295/- along with applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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