TMI Blog2023 (10) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... ame has not been recovered from their customers and the excess paid amount of Rs.32,65,057/- is shown as outstanding balance as receivables in their balance-sheet - Nonetheless, nothing concrete has been placed on record that the duty element shown in the invoices issued to customers has not been recovered from the customers. Under such circumstances, the concurrent finding of Tribunal that it is a case of unjust enrichment cannot be faulted with and the assessee has rightly been held not entitled to refund of Rs.32,65,057/- as excess amount of excise duty. In none of the documents viz. Books of Accounts or certificate from Oil marketing PSUs, as mentioned in the substantial question framed, the assessee has shown to have not actually re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. The period in question is January, 1999 to March 1999 and September, 1999 to 28/10/1999 falling in two assessment years 1998-1999 and 1999 to 2000. Undisputedly, the Assessee, M/s GAIL (India) Limited, Vijaipur, District Guna, previously known as M/s Gas Authority of India Limited, has filed a refund claim for Rs. 32,65,057/- on 6/10/2003 consequential to finalisation of their provisional assessment of their product LPG for the period from November, 1996 onwards vide order dated 27/3/2003 passed by the Deputy Commissioner, Central Excise, Gwalior. The first adjudicating Authority i.e. Assistant Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has shown duty element in the invoices as per the provisions of S.12-A of the Act. It is also stated that the same has not been recovered from their customers and the excess paid amount of Rs.32,65,057/- is shown as outstanding balance as receivables in their balance-sheet. Nonetheless, nothing concrete has been placed on record that the duty element shown in the invoices issued to customers has not been recovered from the customers. Under such circumstances, the concurrent finding of Tribunal that it is a case of unjust enrichment cannot be faulted with and the assessee has rightly been held not entitled to refund of Rs.32,65,057/- as excess amount of excise duty. The Tribunal has referred to identical matter of the assessee for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g PSUs is also evident from the certificate dated 07.08.2003 issued by their Chartered Accountants which states that the amount was outstanding in their books and had been included in separate account code i.e. Accounts recoverable others. This by itself indicates that higher duty incident had been passed on by them to their buyers and the right to recover duty amount has not been forgone by the Appellants. It is, thus, established that incidence of excess duty sought to be refunded has been passed on by them to their buyers.The Appellants have relied upon the decisions in the case of Karnataka Antibiotic Pharmaceuticals Ltd. v. CCE 1996(83)ELT 114(T), Thermon Heat Traders Ltc. v. CCE 2001 (132) ELT 455 (T), Indo Flogates ltd. v. CC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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