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TMI Blog2024 (1) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... horized Representative for the Respondent ORDER The facts in brief relevant for the present adjudication are as follows: 1.1 The appellant is engaged in the manufacture of Gantry Cranes Motor Vehicles falling under Chapter Heading 8426 8702 respectively of the Central Excise Tariff Act, 1985. The appellant manufactured and cleared excisable goods without obtaining registration and without payment of duty availing benefit of SSI exemption. Accordingly Show Cause Notice dated 18.02.2014 was issued demanding of Rs. 26,52,031/- for the period 2009-10 and 2010-11 and same was adjudicated vide Order-in-Original dated 28.09.2015, wherein demand was confirmed along with interest and penalty was also imposed. Being aggrieved, the appellant filed appeal before Commissioner (Appeals), who vide Order-In-Appeal No. 51(NG)CE/JPR/2018 dated 11.04.2018, rejected the appeal. The appellant challenged the said Order-In-Appeal before the Hon'ble CESTAT which was allowed by the Hon'ble CESTAT vide Order No. A/50935/2019-Ex(DB) dated 26.03.2019. The appellant filed consequential refund claim of Rs.16,66,469/-, which was deposited by them during investigation on 29.11.2019. The adjudicating autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .-Chan.) (vi) Man Truck Bus India P. Ltd. Vs. Commr. of Cus., GST, C.Ex. Cus., Indore reported as 2021 (375) E.L.T. 590 (Tri.-Del.) The order under challenge is accordingly prayed to be set aside and appeal is prayed to be allowed. 4. Learned DR on the other hand has submitted that any amount other than those deposited in terms of Section 35F of the Central Excise Act, 1944 is payment towards the duty and refund of such amount shall be governed by the provisions of Section 11B of said act. The original adjudicating authority has not thoroughly examined the books of account of the appellant. The Chartered Accountant's Certificate cannot solely be relied in arriving at the conclusion that the burden of duty has been borne by appellant himself. Although the amount of tax has not been directly recovered from the customers by the appellant but has been charged to expenses in their books of accounts, the appellant has indirectly recovered the tax and hence has failed to cross the bar of unjust enrichment. Once the amount is booked in the Profit and Loss Account, it entails passing of the incidence of duty to the customers. Thus the amount of duty and interest booked by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals). However, we observe that Hon ble Supreme Court has not denied the refund of duty but has clarified that the refund of duty either under Central Excise Act, Customs Act, in a Civil Suit or in a Writ Petition can be granted only when it is established that burden of duty has not been passed on to the others. It has been held that the person ultimately bearing the burden of duty can only legitimate its refund. There is no dispute with regard to the said proposition of law laid down by the Hon ble Supreme Court which is applicable to the case of refunds. 5.3 In the present case, admittedly the amount was deposited by the appellant during the investigation when department proposes to deny him the benefit of SSI exemption. Later the said denial was set aside and the appellant was held entitled for the said SSI exemption. Admittedly the goods were already cleared prior the payment of the impugned amount by the appellant. We observe that the period involved in the present dispute is the Year 2009-10 and 2010-11 whereas the payment was made in the Year 2013-14. Thus the payment was made even prior the issuance of show cause notice of demand denying exemption dated 18.02.2014. These a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... just enrichment. Commissioner (Appeals) has committed an error while ignoring said the verification report, specifically in absence of any evidence by the department to support the presumption of Section 12B of Central Excise Act. 5.7 We further observe that the issue involved in the present case stands already settled by Hon ble Apex Court in the case of Sandvik Asia Ltd. (supra), wherein it has been held that Revenue cannot invoke the plea of principle of unjust enrichment where the assessee had paid the amount in question as a subsequent stage (in that case the amount in question was deposited in compliance with some interim order in assessee s books of accounts). Hon ble Apex Court has also clarified, in this case, that even if the assessee has shown such amount as expenses in accounts, it does not mean that the burden has been passed to his customers. Hon ble High Court of Madras also in the case of Commissioner of Central Excise, Coimbatore Vs. Pricol Ltd. reported as 2015 (322) ELT 703 (Mad.) has held the refund of the amount as was deposited during investigation was not the amount of duty. Therefore, the principle of unjust enrichment would not apply when the refund is clai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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