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2017 (8) TMI 105 - HC - Central ExciseRefund claim - doctrine of "unjust enrichment" - Whether the CESTAT is justified in allowing the appeals of the respondent assessee and in permitting refund of excise duty to it under Section 11B of the Act even though the presumption of Section 12B of the Act was not successfully dislodged by the respondent assessee? Held that: - when no presumption arises under Section 12B of the Act, it is not for the respondent assessee to dislodge any such presumption by adducing evidence to the contrary rather the burden lies upon the revenue to prove that the incidence of tax-duty was passed on by the respondent assessee to third parties which it had utterly failed to discharge - in the absence of any sale of any component or photo-copier drums to the customers in terms of the FSMA, there is no question of passing over the incidence of excise duty on anyone and the duty deposited under protest by the respondent assessee is out of its own pocket. A Division Bench of this court in Commissioner of Sales Tax NOIDA Vs. Atrenta India Pvt. Ltd. [2017 (4) TMI 563 - ALLAHABAD HIGH COURT] in connection with the refund of Cenvat Credit Rules, 2004 held that where refund is otherwise admissible the interpretation should justify refund to the party as department cannot retain legally refundable revenue. Appeal dismissed - decided against appellant.
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