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2016 (12) TMI 1514 - AT - Central ExciseRefund claim - excise duty paid wrongly - unjust enrichment - Held that: - Under Section 12B of Central Excise Act, 1944 when the invoice is raised including the excise duty a presumption is raised that the incidence of duty is passed on. But this presumption is a rebuttable one. When the invoice was mistakenly raised including the duty and when excise duty was not collected, there is no question of the burden of duty being passed on. The appellant paid excise duty wrongly, and the same though included in invoice has not been collected from BHEL. The entry was made debiting the excise duty without actually collecting the excise duty - BHEL has categorically stated that they have not paid the excise duty raised in the invoice which establishes that the duty burden has not been passed on - refund is not hit by unjust enrichment - appellant is eligible for refund - appeal allowed - decided in favor of appellant.
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