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TMI Blog2008 (6) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant. Shri U.H. Jadhay, JDR, for the Respondent. [Order] - Brief facts of the case are that the appellants have taken credit on inputs meant for use in their factory. However subsequently it was found that part of inputs were not received by them but instead went to another unit of theirs. As per their say, Cenvat credit amounting to Rs. 6,44,352/- relatable to such inputs which were not received in their unit was reversed by them. However, on query from audit the same amount was again reversed by them under protest vide Cenvat Entry No. 1163 dated 2-1-1999. The matter was agitated by them and ultimately credit was allowed to them by Commissioner (Appeals) vide his order dated 29-9-2004. They accordingly filed refund claim in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Tribunal in the case of Commissioner v. Brooke Bond Lipton - 1999 (107) E.L.T. 228 (Tri.), Commissioner v. Kanpur Plastipack Ltd. - 2001 (127) E.L.T. 826 (Tri.), Commissioner v. Dura Syntex Ltd. - 2003 (154) E.L.T. 422 (Tri.-Mum.) wherein it was held that provisions of unjust enrichment do not apply in respect of refund relating to credit of duty paid on inputs. He, however, admitted that this plea was never raised before Commissioner (Appeals). 2.1 Lastly it was submitted that they have not passed on the incidence of duty to the customers and have submitted their profit and loss account as well as the Chartered Accountant Certificate to this effect. The C.A. Certificate clearly says that the amount of Rs. 6,44,352/- has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Accountant certificate it was submitted that once it is admitted that the amount has been debited to the expenses account, it has to be treated as expenditure which is bound to be recovered from the customers indirectly. 4. Ld. Advocate for appellants in his counter submission refers to the decision of Madras High Court in the case of Commissioner v. Flow Tech Power - 2006 (202) E.L.T. 404 (Mad.) which was followed by the Tribunal in the case of Commissioner v. Cummins India Ltd. - 2008 (221) E.L.T. 525 (Tri.-Mum), wherein it was held that mere showing of amount as expenditure in profit and loss account does not establish recovery from customers and once the Chartered Accountant certificate says that the duty incidence has lot bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that debit to sundry adjustment account does not amount to passing on expenses/losses to the customers. This finding has not been challenged by the Revenue except saying that this is vague. This finding is very specific and if the Revenue has any doubt on the same it could have asked for further clarification from the Chartered Accountant. Having not done so I hold that Chartered Accountant certificate is clear that such amounts are not passed on to the customer and I accordingly hold that incidence of duty has not been passed on to the customers. In view of this refund cannot be credited to the Consumer Welfare Account and the appellants are entitled to the same. I accordingly, set aside the order of Commissioner (Appeals) and allow the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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