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TMI Blog2024 (6) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... able to pass the bar of unjust enrichment. As in the appellant s own case for identical facts [ 2013 (4) TMI 467 - CESTAT NEW DELHI ], it has been held that the bar of is not applicable to the facts of this case, therefore, we hold that the appellant is entitled for refund claim and has passed the bar of unjust enrichment by providing certificate issued by the Chartered Accountant to that effect and have shown the amount of refund is receivable from the Department which is reflected in the Balance sheet. Admittedly, in this case, the appellant has paid the duty under protest and the duty is payable by the appellant on MRP basis, therefore, relying on the decision of Girish Foods Beverages Pvt. Limited [ 2007 (2) TMI 28 - CESTAT, MUMBAI ], the appellant is entitled for refund of excess duty paid under protest and bar of unjust enrichment is not applicable - the appellant has been able to pass bar of unjust enrichment. Consequently, the appellant is entitled for refund as claimed. Interest for delayed refund in terms of Section 27A of the Customs Act, 1962 - HELD THAT:- The appellant is entitled to interest of refund claim after three months from the date of filing of refund claim t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Balance Sheet as receivable and (ii) submission of CA Certificate, stood fulfilled. The said order has attained finality since the department has not preferred any appeal against the said order. 2.5 As regards the present claim, despite numerous communications between the Appellant and the department over an extended period, the refund claim for the period 09.05.2015 to 17.06.2015 was ultimately denied by the Ld. Deputy Commissioner by an order-inoriginal dated 17.06.2021. The denial was on the grounds of unjust enrichment, even though the Appellant had substantiated their claim with a certificate from a Chartered Accountant and also the amount claimed as refund was appearing as a receivable in the books of accounts of the Appellant. 2.6 Being aggrieved by the order dated 17.06.2021, the Appellant preferred an appeal before the Ld. Commissioner (Appeals) Patna. Elaborate submissions were made by the Appellant which were not considered by the Ld. Commissioner (Appeals) who confirmed the order-in-original dated 17.06.2021 by an order-in-appeal dated 29.07.2022. The impugned order rejected the appeal of the Appellant on the ground that the Appellant had been unjustly enriched b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plitting hairs. The Chartered Accountant is a competent authority in such matters and issues the certificate after examining the relevant financial records. Such a certificate, as decided by the Hon'ble Delhi High Court, in the case of Hero Motocorp Ltd. v/s Commissioner of Customs (Import Generali- 2014(302)ELT501(Del), forms a definitive proof that the burden of excess payment of duty has not been passed on to their customers by the appellant. The We Delhi High Court advices practical and realistic approach in such matters and be oblivious as to nature and character of proof which is available Further, the le Court also states that if the assessee is able to show that the burden of duty been passed on, he asserts and submits affidavits and certificate of a med accountant along with copy of the balance sheet, indicates and shows sales invoices for pre and post-period and when there is no other negative factor or evidence to the contrary to disbelieve, the contention should be accepted. To deny what was paid and has to be refunded by law to the said person is not fair, just and equitable 5. Now, the question arises about submission of invoices of pre and post-perio. The departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to rebut the findings of the Commissioner based on the balance sheet, C.A. Certificate and prices of the car remain unchanged brought on record by the Respondents in the grounds of appeal has been merely mentioned that Maruti Vidyog Ltd. must have taken the duty paid by them in consideration while working the cost of end-product. No material, in support of ground has been adduced. The Tribunal in the case of Hero Honda Ltd. has held as under : As regard the factual position also, we find that the details shown in the appellants balance sheet and annual report show the disputed refund amounts as receivable from Government. Further entries in their journals extracted at pages 225-226 of the Appeal Papers and the Chartered Accountant s certificate at pages 231- 235 thereof also indicate that the appellants have not passed on the incidence of provisional deposit to the customers. We are also satisfied that the appellants have been able to show that the components imported by them have not been consumed in the manufacture of the final products. Thus we find no reason to interfere with the impugned Order and reject the appeal filed by the Revenue. 6.2 Similarly, in another case and on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o major conditions, (i) Amount being reflected in Balance sheet as receivable and (ii) CA certificate stands fulfilled and accordingly, the appellants are entitled to the refund claim. 8. The appeal is allowed with consequential relief. 8. As in the appellant s own case for identical facts, it has been held that the bar of is not applicable to the facts of this case, therefore, we hold that the appellant is entitled for refund claim and has passed the bar of unjust enrichment by providing certificate issued by the Chartered Accountant to that effect and have shown the amount of refund is receivable from the Department which is reflected in the Balance sheet. 9. Further, we hold that in the case of Girish Foods Beverages Private Limited (supra), this Tribunal has examined the issue and observed as under : 7. After going through the impugned order I find that admittedly during the period February 2003 and March 2003, the appellant was not paying any duty on their clearances on the ground that their factory being situated in the rural area was entitled to exemption in terms of Notification No. 8/03 dt. 1-3- 2003. it is also on record that duty for the said period i.e. second fortnight ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chisees of M/s. Dhariwal Industries Ltd. The goods attracted to duty in terms of Section 4A of Central Excise duty on the basis of MRP, which is being fixed by M/s. Dhariwal Industries Ltd. and the appellants are not free to challenge or alter the MRP so fixed. MRP of the product during the period when normal rate of duty was paid and after 24-8-04 remained the same. It has also been noticed by the appellate authority that some of the other franchisee also availed exemption under Notification No. 9/02 dt. 1-3-2002 but the MRP of all of them remained unchanged during the entire period. This clearly indicate that duty burden has not been passed on to their customers .. 10. Admittedly, in this case, the appellant has paid the duty under protest and the duty is payable by the appellant on MRP basis, therefore, relying on the decision of Girish Foods Beverages Pvt. Limited (supra), the appellant is entitled for refund of excess duty paid under protest and bar of unjust enrichment is not applicable. 11. In view of these observations, we hold that the appellant has been able to pass bar of unjust enrichment. Consequently, the appellant is entitled for refund as claimed. 12. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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