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2016 (4) TMI 881 - AT - CustomsRefund claim - excess custom duty paid - unjust enrichment - non-production of certificate of non-availment of Cenvat credit - Held that:- the appellant is not registered with Central Excise department for issuance of Cenvatable invoice therefore question of either availment of Cenvat credit or passing of Cenvat credit does not arise. Appellant have submitted sales invoice wherein it was clear that Cenvat credit was not passed on. In this factual position insistence of the Adjudicating authority for producing Cenvat non-availment certificate, in my view not at all required. As regard other test whether the incidence of refund amount was passed on or otherwise, I find that appellant have submitted C.A. certificate as well as they shown amount of refund as “Custom Duty Receivable:” in their balance sheet. From this evidence, it is clear that appellant has been able to prove that the incidence of excess paid duty for which refund is sought for, has not been passed on to any other person. - Matter remanded back
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