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2012 (12) TMI 946 - AT - Central ExciseDenial of refund claim - Unjust enrichment - Burden of proof - Held that:- Lower authorities have held that assessee has failed to show that duty burden has not been passed on. I find that we are not really concerned with a refund claim of duty which was paid earlier, but claimed as refund subsequently in this case. Appellant had taken credit on capital goods and on objection raised by the Revenue, as a law abiding citizen, appellant reversed it without waiting for adjudication process, but challenged the same and ultimately succeeded at Tribunal level. In this case, therefore, if appellants were to wait for the decision after adjudication process, there may not be even any reversal at all since the appellant’s stand was upheld by the Commissioner (A). In these circumstances, there is no question of unjust enrichment since there was no need for a reversal in the first place. Therefore availment of credit subsequently could not have arisen. Further, after the Tribunal’s decision upholding the availability of credit, appellants could have taken suo motu credit. Since the Tribunal had passed the order in favour of the appellants, when decision of the L.B. was not available, appellants could have taken credit suo motu which also they did not do - Decided in favour of assessee.
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