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2013 (6) TMI 140 - HC - Central ExciseRefund - unjust enrichment - burden to prove and to rebut - held that:- burden was upon the appellant to rebut presumption under Section 12B. When Section 11B(1) is read along with Section 12B, it is apparent that the Parliament has acted upon the normal course followed in all commercial transactions and, therefore, there is a presumption that expenditure incurred by persons like appellants, has been recovered by them while selling their product. Because of this normal business practice, not passing burden of taxes to consumer is an exception & therefore, Section 11B(1) requires person claiming refund to produce along with his application for refund, documentary or other evidence showing that incidence of such duty had not been passed by him to any other person. The judgment of Karnataka High Court in the case of C.C.E., Bangalore-II v. Karnataka State Agro Corn. Products Ltd., (2006 (7) TMI 11 - HIGH COURT OF KARNATAKA) shows that in para 6 of judgment of Hon’ble 9 Judges of the Hon’ble Apex Court in the matter of Mafatlal Industries Limited v. Union of India & Ors. [1996 (12) TMI 50 - SUPREME COURT OF INDIA], has been looked into and a finding has been recorded that there cannot be any unjust enrichment by State Government. The contention that as final product is not exigible, there is no scope for application of principle of undue enrichment, is equally misconceived. The plea & argument that appellant has at times sustained loss is not sufficient to grant refund. The loss suffered may be on account of various factors and if while determining market price of coal, the expenditure on manufacturing process has been looked into, such subsequent loss becomes irrelevant. All the authorities have concurrently found that the appellant-assessee has failed to discharge that burden. We do not see any perversity in that finding. - Decided against the assessee.
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