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2014 (11) TMI 705 - AT - Central ExciseWaiver of pre deposit - recovery of refund claim - refund claim was sanctioned earlier - Bar of unjust enrichment - whether the refund claim is hit by bar of unjust enrichment - assessee were able to recover the full cost of production including excise duty with surplus - Held that:- Prima facie while as per the principle of unjust enrichment, the refund can not result in double benefit to an assessee i.e. refund of excise duty paid as well as recovery of that duty from the customer, the refund should also not result in double loss to the Government i.e. refunding duty to the assessee and also permitting the same amount of cenvat credit to the assessee’s customers and for the purpose of refund to an assessee of excess duty paid by him what is relevant is whether or not he had recovered an amount representing the duty from his customers and it is not relevant whether the total price charged by the assessee from his customers i.e. basic price plus excise duty is less than the cost of production and for this reason he had suffered losses. This issue also requires in-depth examination at the stage of final hearing. Therefore at this stage, it cannot be said that the Appellant have prima facie case in their favour. On deposit of this amount within the stipulated period, the requirement of pre-deposit of balance amount of duty demand and interest shall stand waived and recovery thereof stayed - Partial stay granted.
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