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TMI Blog2017 (8) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. [2017 (4) TMI 563 - ALLAHABAD HIGH COURT] in connection with the refund of Cenvat Credit Rules, 2004 held that where refund is otherwise admissible the interpretation should justify refund to the party as department cannot retain legally refundable revenue. Appeal dismissed - decided against appellant. - Central Excise Appeal No. 53 of 2014, Central Excise Appeal No. 96, 97, 98 of 2017 - - - Dated:- 1-8-2017 - Hon'ble Pankaj Mithal And Hon'ble Umesh Chandra Tripathi, JJ. For the Appellant : Krishna Agarwal For the Respondent : Nishant Mishra ORDER These are four Central Excise Appeals which have been preferred under Section 35G of the Central Excise Act, 1944 (hereinafter referred to as the Act) against the common order of the Customs Excise and Service Tax Appellate Tribunal (CESTAT) dated 06.05.2013 by which four appeals of the same assessee were allowed and the respondent assessee was allowed refund of excise duty which was deposited by it under protest pending the consideration of the validity of the adjudicating order. In all appeals a common substantial question of law as under is proposed to be raised:- Whether the CESTAT is justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve order, applied for refund of excise duty deposited by it under protest in accordance with the provisions of Section 11B of the Act. The claims for refund were rejected by the adjudicating authority as well as the appellate authority on the ground of unjust enrichment. The orders passed by the adjudicating authority and the appellate authority in refusing the refund the aforesaid duty of excise to the respondent assessee, were taken in appeals before the CESTAT which have been allowed by the impugned order. The Central Excise has thus preferred these appeals. We have heard Sri Krishna Agarwal, learned counsel for the appellant and Sri B. Lakshmi Narasimhan along with Sri Nishant Mishra, learned counsel for the respondent. It was argued by Sri Agarwal that under Section 12B of the Act, there is a presumption that the excise duty paid by the respondent assessee has been passed on to the buyer of the goods and therefore, unless the contrary is proved, the respondent assessee is not entitle to refund of it as it would amount to unjust enrichment. The argument in defence is that there is no fresh sale of any goods which may attract the payment of excise duty and as such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. In the case at hand the Tribunal has returned a finding of fact that the respondent assessee had not passed the incidence of excise duty to the customer. This finding of fact has been recorded by the highest fact finding authority and is not ordinarily supposed to be disturbed in an appeal by the High Court hearing appeal only on substantial question of law inasmuch as sufficiency or insufficiency of the evidence and the findings of fact are not the matters which can be dealt with in such appeals. In view of the finding of the Tribunal that the incidence of excise duty on the replaced photo-copier drums has not been passed on to the customers, the question of unjust enrichment does not arise to deny the refund to the respondent assessee and in these circumstances no question of law arises for determination by us. Thus, we do not consider it appropriate to interfere with the finding of fact and with the order of refund passed by the Tribunal after setting aside the orders of the authorities below. Nonetheless, as Sri Agarwal has vehemently argued that the amount received under the FSMA denotes the sale which includes duty of excise, we consider it appropriate to deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence to the contrary rather the burden lies upon the revenue to prove that the incidence of tax-duty was passed on by the respondent assessee to third parties which it had utterly failed to discharge. Accordingly, in the absence of any sale of any component or photo-copier drums to the customers in terms of the FSMA, there is no question of passing over the incidence of excise duty on anyone and the duty deposited under protest by the respondent assessee is out of its own pocket. Learned counsel for the revenue has relied upon a Division Bench of this court in the case of Sanat Products Ltd. Vs. Commissioner of Central Excise 2015 (323) E.L.T. 682 (All.) wherein in a similar case for refund of excise duty on the unjust enrichment, the appeal of the assessee was dismissed holding that even where the sale price remains constant it does not lead to a conclusion that the duty has not been recovered from the customer. The facts of this case are ex facie different from the one at hand inasmuch as it was a case of clear sale of excisable goods whereas in the present case, there is no sale of the reconditioned photo-copier drum on re-installation in the already sold photo-copier ..... 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