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TMI Blog2019 (9) TMI 1544X X X X Extracts X X X X X X X X Extracts X X X X ..... ttedly, the goods were cleared during the periods 2007-2008 to 2010-2011. Whereas the duty, has been deposited at the inquiry stage in the financial year 2011-2012. Further, admittedly, in the invoices for clearances under EPCG licence, no duty has been charged and rather in the Duty column, it is clearly mentioned that the duty is not payable as the goods have been cleared under EPCG licence giving the licence number and its date. The appellant has led sufficient and cogent evidences in the form of Chartered Accountant s certificate, copies of their balance sheet for the relevant period as well as supporting evidences from some of the buyers, from which it is evident that they have not passed on the duty to the buyers of the goods - the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharged the Terminal Excise Duty (TED) and should have claimed the refund. On pointing out the mistake by the Department, the appellant deposited the duty liability along with interest on 28-4-2011 and 30-4-2011 respectively. Thereafter, the department issued a show cause notice dated 28-6-2011 seeking recovery of the central excise duty along with interest and for imposition of penalty. The show cause notice resulted in the adjudication order dated 5-11-2010. The Ld. Commissioner of Central Excise has confirmed the central excise duty demand of ₹ 2,44,77,849/- along with interest and also imposed equivalent amount of penalty on the appellant. This Tribunal in earlier appeal on merits vide Final Order No. A/52331/2017-EX(DB), date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ril, 2011 before the issuance of SCN, which, however, was subsequent to the removal of the goods during such period. 6. The aforesaid factual position is ex facie evident from a bare perusal of the invoices annexed in appeal paper book, wherein the goods were cleared to the EPCG licence holders under ARE-3 Form, and no excise duty was charged by the appellant by clearly mentioning Not Applicable/payable against the column of Excise duty and Not payable against the column Total Duty Payable. 7. The appellant had also furnished affidavits (copy annexed in appeal paper book) from its buyers, on illustrative basis, wherein the buyers have categorically stated that the appellant has not recovered any additional amount from the buyers a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant s case is even on a better footing, than the ones in the cases cited above, as it is not the case wherein the invoice was silent on the aspect of duty element or the duty column of the invoice was left blank. In the present case, the invoices raised by the appellant clearly mentioned that the goods are cleared to EPCG licensee under ARE-3 Form, and no excise duty is being charged. Thus, the aforementioned decisions are squarely applicable in the present case. 10. It is further urged that the appellant had provided CA certificates dated 22-5-2017 along with supporting documents, which was based on detailed scrutiny of books of account, ledger accounts and other documents such as invoice and monthly returns of the appellant pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up of the Misc. Expenses booked under GL Code 60001 reveals that the amount of ₹ 2,42,19,918 deposited by the appellant, forming part of the misc. expenses in the balance sheet for the financial year 2011-2012. The Court Below held that unjust enrichment would attract, by observing that the duty debited under Misc. Expenses Account formed costing of the goods, and thus, ipso facto is recovered from the buyers of the goods. 13. Ld. Counsel further urges that the aforementioned treatment of deposit of duty in its books of account is due to following of Accounting Standard-20 , which provides - Provisions, Contingent liabilities and Contingent Assets, as per which any claim that an enterprise is pursuing through legal process is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, the provisions of unjust enrichment are not applicable. 17. Accordingly, the Ld. Counsel prays for allowing their appeal with direction to grant of refund with interest as per rules. 18. Ld. Authorised Representative for the Revenue relies on the impugned order. 19. Having considered the rival contentions, we find that the findings of Court below is in gross violation of Section 12B of the Central Excise Act, which provides, every person, who has paid duty of excise on any goods under this Act, shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. 20. We hold that this presumption is not available to the Revenue, in the facts and circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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