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2016 (9) TMI 1018 - AT - Central ExciseRefund claim - unjust enrichment - whether the refund sanctioned by Assistant Commissioner is wrong, since the appellants have not proved that they have not passed on the duty burden - duty paid under protest - refund pertains to refund of pre-deposit amount - only - Held that:- it is found that the respondents have not produced any specific documentary evidence to prove that the duty has not been passed to other person/ buyer to nullify the doctrine of unjust-enrichment. I do not find that they were forced by any authority and that they followed correctly the provisions of law applicable to under protest payments. It is also found that the respondents have submitted that they were forced to debit the duty, that they made the payment under protest at the time of preventive checks of the goods sold during the period 01.04.1997 to 27.09.1997 but I do not find any evidence proving forced recovery debit and also there is no endorsement on the TR-6 challans for payment under protest as prescribed under Rule 233B of the Central Excise Rules, 1944. The Hon’ble Supreme Court in the case of Mafatlal Industries Limited vs. UOI [1996 (12) TMI 50 - SUPREME COURT OF INDIA] and in the case of Sahkari Khand Udyog Mandal Limited vs. Commissioner [2005 (3) TMI 116 - SUPREME COURT OF INDIA] held that no refund can be made unless it is established that burden of duty is not passed on to others. Therefore, in view of the same, we find no infirmity in the impugned order of Commissioner (Appeals) which is upheld. - Decided against the appellant
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