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TMI Blog2025 (2) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of M/s. Birla Corporation Ltd. [2017 (8) TMI 785 - CESTAT ALLAHABAD] wherein the Tribunal observed that 'it is an admitted fact that the appellant have received the same price/MRP for clearances of goods on 6 December, 7 December, 8 December, and so on. Accordingly I hold that there can be no presumption that the appellant have passed on the excess duty deposited erroneously on 7 December, to the buyer of the goods. Accordingly, I hold that the doctrine of unjust enrichment has been satisfied by the appellant assessee and I hold them entitled to refund of the amount in question.' Conclusion - The duty burden was not passed on to buyers, and therefore, the refund claim was not barred by unjust enrichment. There are no merit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Notification No. 02/2011-CE 'under protest' though it was eligible for benefits under Notification No. 01/2011-CE. (iii) Thereafter, the Respondent preferred an application for refund for the excess duty paid in relation to 285 Bills of Entry during the relevant period i.e., 18.06.2015 to 10.07.2015. (iv) The ld. adjudicating authority vide the Order-in-Original No. 02-Cus/Refund/DC/Rxl/2018 dated 23.01.2018 held that the refund amount of Rs. 1,04,47,836/- is not payable in cash to the Respondent on the ground of unjust enrichment and thereby credited the said amount in the Consumer Welfare Fund in terms of Section 12C of the Central Excise Act, 1944. 3. Being aggrieved by the aforesaid Order-in-Original dated 23.01.2018, the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Allied Photographics India Ltd. [2004 (166) E.L.T. 3 (S.C.)] to say that the Respondent has passed on the duty component to the buyers since the goods were sold on M.R.P. basis. 7. On the other hand, the Ld. Counsel appearing on behalf of the Respondent submits that the respondent has not passed on the incidence of duty to their customers, but have borne the same by themselves by showing the amount of refund as "receivable" in their Books of Accounts. It is submitted that to that effect, a Chartered Accountant's certificate has also been produced by the Respondent. Moreover, it is stated by the Respondent that the goods domestically procured and the goods imported are sold at the same M.R.P. and the excess duty paid by them at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of unjust enrichment is applicable or not has been dealt with by this Tribunal in the case of M/s. Birla Corporation Ltd. (supra) wherein the Tribunal observed as under: - "8. Having considered the rival contentions and the case laws referred to hereinabove, it is an admitted fact that the appellant have received the same price/MRP for clearances of goods on 6 December, 7 December, 8 December, and so on. Accordingly I hold that there can be no presumption that the appellant have passed on the excess duty deposited erroneously on 7 December, to the buyer of the goods. Accordingly, I hold that the doctrine of unjust enrichment has been satisfied by the appellant assessee and I hold them entitled to refund of the amount in question." 9.2. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appellant did not follow the elaborated procedure of payment of duty under protest. The entire idea of payment of duty under protest is to inform the Revenue that the assessee is not in agreement with the Revenue's view but to avoid any confrontation at that particular point of time, duty is being paid and the assessee reserves his right to settle the same on the out come of the final verdict on the disputed issue. As such it cannot be said that though the initial payment on 24-3-03 was under protest, the subsequent payments were voluntary and were hit by the bar of limitation. It has to be concluded that the appellant paid the duty under protest and on the final dispute about exemption being settled in their favour, was entitled to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibre v. CCE, 2000 (120) E.L.T. 510 (T) and ITC Bhadrachalam Paper v. CCE, 2002 (146) E.L.T. 582 (T). He also referred to a copy of the affidavit dated 2nd September, 2005 duly notarized and solemnly affirming that they have not passed on the burden of duty involved to another person and have also submitted documentary evidence to show that MRP of goods remained constant before and after payment of excess duty. 9. As against the above Revenue has relied upon Calcutta High Court decision in the case of Bata Shoe (P) Ltd., 2004 (169) E.L.T. 3 (Cal.) laying down that when there is no direct collection from customers, duty must have been reflected in ultimate cost of finished goods. They have also referred to Hon'ble Supreme Court decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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