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2016 (9) TMI 285 - AT - Central ExciseRefund claim - goods covered under invoice were eligible for exemption under Notification No. 3/2004-CE dated 08.01.2004 - firstly refund application was filed by the buyer which was subsequently withdrawn and there after respondent had filed the refund application - Held that:- at the time of supply of goods, the respondent herein had charged the Central Excise Duty in the invoices which were paid by the buyer. This fact is evident from the refund claim filed by the buyer. Since the buyer has withdrawn the refund application and on 10.07.2007 the respondent had filed the refund application, it is evident that the Central Excise Duty amount was not returned by the respondent to the buyer till such time. There is also no evidence available in the file that the Department has insisted the buyer to withdraw the refund application. Since the incidence of duty had been passed on from the respondent to the buyer at the time of supply of goods, subsequent issuance of Cheque which is in the form of a credit note cannot be considered as a document to prove the fact that the incidence of duty has not been passed on. We find support from the judgment of Gujarat High Court cited by the Revenue, in the case of Commissioner of Central Excise and Customs vs Dutron Plastics [2015 (8) TMI 1173 - GUJARAT HIGH COURT], wherein the Hon’ble Gujarat High Court have held that the doctrine of unjust enrichment is established, even if the credit notes are issued after clearance of goods. - Therefore, we do not find any merits in the impugned order. - Decided in favour of Revenue
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