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TMI Blog2020 (9) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... d on by the respondent, but the learned counsel for the appellant has failed to show any document, therefore, concurrent finding of fact recorded by the Tribunal and the authorities below cannot be said to be perverse. Appeal dismissed. - Central Excise Appeal No. - 50 of 2020 - - - Dated:- 16-9-2020 - Surya Prakash Kesarwani And Jayant Banerji JJ. ORDER Heard Sri Krishna Agrawal, learned counsel for the appellant and learned counsel for the respondent. This appeal has been filed against the Final Order No. A/70576/2019-EX(DB) dated 06.01.2020 / 29.11.2019 (Commissioner, Central Goods Service Tax, Ghaziabad Vs. M/s East India Udyog Limited) arising from the order in appeal dated 25.04.2019. It appears that an amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.2018 in which he mentioned that respondent has not charged the amount of ₹ 1,00,00,000/- from their customers and in this regard the respondent has submitted CA certificate dated 22.01.2018 and, therefore, unjust enrichment is not applicable. By a detailed order, the Assistant Commissioner, Central Goods Services Tax, Division-IV, Ghaziabad allowed refund of ₹ 1,00,00,000/ to the respondent on the finding that burden of the aforesaid amount has not been passed on to customers by the respondent and, therefore, unjust enrichment is not applicable. Aggrieved with the aforesaid order dated 13.03.2018 passed by the Assistant Commissioner, Central Goods Services Tax, Division-IV, Ghaziabad, the appellant herein filed an appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined by adjudicating authority for verifying the issue of unjust enrichment. The appellant department has not adduced any evidence to doubt the veracity of the CA certificate. Besides, the appellant department has failed to appreciate that in the case of refund of deposits/pre - deposits because of the orders of the appellate authorities/Courts setting aside the demands, the principles of unjust enrichment were not applicable as the amounts so deposited never took the character of duty. The Hon'ble High Court Allahabad in the case of Ebizl. Com Pvt Ltd vs CCE ST, as reported in 2017 (49) STR 389 has held as under:- Refund - Service Tax and interest thereon - Paid during investigation and adjudication - CESTAT finally deciding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles of unjust enrichment is not applicable to the amount paid during investigation/adjudication. From the aforenoted facts, it is evident that concurrent finding of fact has been recorded that respondent has not passed on burden of ₹ 1,00,00,000/- to the customers which was deposited by him during investigation/adjudication. Finding so recorded is a finding of fact, based on consideration of relevant material on record. We, repeatedly asked the learned counsel for the appellant to point out any evidence which may indicate that the burden was passed on by the respondent, but the learned counsel for the appellant has failed to show any document, therefore, concurrent finding of fact recorded by the Tribunal and the authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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