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2017 (1) TMI 1743 - AT - Central ExciseRefund of excess paid duty - allegation is that appellant had passed on the duty element to the buyers and hence, the refund claim was hit by the bar of unjust-enrichment - HELD THAT:- Refund to the tune of ₹ 10,76,917/- has arisen at the time of finalization of provisional assessment for the period April, 2009 to December, 2010 and February, 2010 to March, 2010. However, the refund of the said amount was not paid in cash to the appellant but was credited to the Consumer Welfare Fund established under Section 12 C of the Central Excise Act, 1944. The reason cited in the Impugned order is that the appellant has not been able to establish that incidence of duty was not passed on. The claim of the appellant is that the IC Engines cleared by the appellant to another sister concern have been used in the manufacture of ‘Agricultural Tractors’ which are exempted from payment of Excise Duty. The issue whether unjust enrichment will be applicable for captive consumption has been decided by the Hon’ble Supreme Court India in case of SOLAR PESTICIDES PVT. LTD. VERSUS UNION OF INDIA [1991 (10) TMI 42 - HIGH COURT OF JUDICATURE AT BOMBAY]. The Apex Court has categorically held that the principle of unjust enrichment applies to cases of captive consumption also. The case which was with reference to Section 27 of the Customs Act, 1962 will be equally applicable to the Central Excise matters. There is nothing on record which has been submitted by the appellant to rebut that the presumption that the duty incident has been passed on which is built into Section 11B of the Central Excise Act - Appeal dismissed.
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