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2016 (6) TMI 234 - AT - Central ExciseRejection of refund claim on the grounds of unjust enrichment - payment of duty under protest on broken glass bottles - Held that:- In respect of all the invoices in which at the time of clearance the duty payment has been shown in the invoice, there is no doubt that the burden of duty has been passed on to the customers in such cases. The provisions of unjust enrichment have been rightly invoked in such cases. In respect of first category mentioned by the learned Counsel where they have paid the duty under protest for the past period, the facts are slightly different. In that case the appellant had paid the duty for the past period and not issued the excise invoices but had issued only the commercial invoices. In respect of other payment of duty the appellants have claimed that they have not recovered the same from the customers. The appellants have also produced Chartered Accountant's certificate in the Tribunal, the same was not produced before the Commissioner (Appeals). Thus find that while the impugned order deals with the second situation, it is silent about the first situation. In view of the above, upheld the impugned order so far as it relates to the clearances made on payment of duty. However, in respect of refund claim on the duty paid for the past clearances, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) for giving his findings on the issue. Further, since the Chartered Accountant’s certificate has been produced for the first time in the Tribunal and it was not produced before the Commissioner, the same may also be considered along with other evidence.
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