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TMI Blog2024 (7) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... prove that burden thereof has been passed by the assessee to the buyers. Onus otherwise rests upon the Department to prove the same. There is no such evidence produced by the Department. On the contrary, the assessee has placed on record the C.A. Certificate falsifying the allegations of unjust enrichment. Same cannot be ignored, that too. in absence of any evidence to the contrary.' It is further noted that the appellant is selling the goods on the basis of LME price index. Therefore, the issue is to be examined when the goods are sold by the appellant on the basis of LME Price Index, whether Revenue would hit by unjust enrichment or not ? The said issue is examined by the Hon ble Apex Court in the case of State of Rajasthan Ors. V. Hindustan Copper [ 1997 (11) TMI 516 - SUPREME COURT] , wherein the Hon ble Apex Court has observed that ' It has been stated in the said affidavit that the price of copper has always been fixed by the Mineral Metal Trading Corporation (MMTC) on the basis of the prevailing price fixed by the London Metal Exchange (LME) and this was done not only for the period in question but also for prior and subsequent period and that only such price could b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. prior to March 1991, the appellant was procuring CT Pitch from SAIL-RSP on payment excise duty @ Rs.105/- PMT as stated above. 2.3 The above classification dispute was finally decided by the ld.Commissioner (Appeals) during November,1993, in favour of M/s. SAIL-RSP. As per the said decision, the rate of excise duty on C.T Pitch was payable at the rate of Rs.105/- PMT and not 15% ad valorem, which was already paid by the M/s. SAIL-RSP to the department, and in turn, collected from the appellant. 2.4 Since M/s. SAIL-RSP has already collected the excess excise duty from the appellant, they were not eligible for claiming any refund, in view of the doctrine of unjust enrichment in terms of Sec.11B of the Central Excise Act 1944. Thereafter, the appellant claimed the refund of excess excise duty, the incidence of which was borne by it, by filing a Refund Application dated 29.01.1994 in terms of Sec.11B of the said Central Excise Act, 1944. 2.5 On 28.08.1995, the refund claim filed by the appellant was rejected on the ground that the order dated 12.10.1993 of the Commissioner (Appeals) deciding classification of CT Pitch, is under reference of the Committee of Disputes. 2.6 The said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 To support of his contentions, he also relied on the following case laws : Commissioner v. Vedanta Ltd. 2024 (3) TMI 873 CESTAT Chennai Vedanta Limited v. Commissioner 2018 (6) TMI 528 CESTAT Chennai Chambal Fertilizers Chemicals Ltd. v. Commissioner 2023 (3) Centax 121 (Tri.-Del). 3.2 He further submits that without prejudice, the Chartered Accountant has duly certified that the appellant has shown the amount of excise duty as claimed receivable in its books of accounts. Therefore, the denial of benefit of refund on the ground of unjust enrichment, is not tenable. 4. On the other hand, the ld.A.R. for the Revenue, submitted that during the impugned period, the appellant has booked the element of duty as revenue expenditure in the Books of Accounts and therefore, refund claim is hit by bar of unjust enrichment. 5. Heard both the parties and perused the records and considered the submissions. 6. The short issue involved in this case is that in the facts and circumstances of the case, whether the refund claim filed by the appellant is hit by bar of unjust enrichment or not ? 7. The Revenue sought to deny the refund claim to the appellant on the ground that during the impugned perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to any consumer of the final product, viz., copper, manufactured by the respondent. It has been stated in the said affidavit that the price of copper has always been fixed by the Mineral Metal Trading Corporation (MMTC) on the basis of the prevailing price fixed by the London Metal Exchange (LME) and this was done not only for the period in question but also for prior and subsequent period and that only such price could be charged and that no part of the duty in respect of rectified spirit captivity consumed in the manufacture of copper could be added to the price of copper which was fixed on the basis of the LME prices. We have no reason to doubt the correctness of the aforesaid statement contained in the said affidavit. In the circumstances, no case is made out for interference with the direction contained in the impugned judgment of the High Court regarding refund of excise duty paid by the respondent on import of rectified spirit used in the manufacture of copper. The appeals are, therefore, dismissed. No order as to costs. 10. The said issue has been further examined by this Tribunal in the case of M/s Vedanta Limited Vs. Commissioner of Customs, Tuticorin (supra) and this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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