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2010 (8) TMI 300 - ANDHRA PRADESH HIGH COURTRefund – unjust enrichment – price declared at the time of clearance from factory higher than price at which goods sold at depot – revenue not succeed in this appeal under Section 35G of the Act where element of excise duty is not separately mentioned in invoice - substantial question of law under Section 35G of the Central Excise Act - appeals are dismissed. Under clause (d) of the proviso to sub-section (2) of Section 11B of the Act, an assessee can claim payment of refundable amount to him only when he proves that the incidence of duty was not passed on to any other person. In the" absence of any such proof, presumption that the incidence of duty has been passed on to the buyer as adumbrated in Section 12B of the Act is attracted. In this case, the adjudicating authority, appellate authority and the learned Tribunal have consistently found that APPL has proved that the incidence of duty was not passed on to the buyers at the time of sale at discount price from the depots - there was no unjust enrichment.
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