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2018 (12) TMI 1169 - AT - Central ExciseRefund of reversed CENVAT credit - time limitation - unjust enrichment - Held that:- The payment was made lastly in February, 2011 without protest and refund claim was filed on 22.06.2017. But such payment being made at the insistence of the Department cannot be considered as time barred and provisions of Section 11B are not applicable in the present case - However, he has not dealt with Section 11B explanation (EC) whereby the period of one year should be computed from the date of judgment decree, order or direction of the Appellate Tribunal. This being not challenged before the Commissioner, no finding is required in this aspect that refund was filed within the prescribed period of limitation. Unjust enrichment - Held that:- It can be noticed that referring to the Balance Sheet of 2005-06 & 2006-07 and for the financial year of 2015-16 & 2016-17 the Adjudicating Authority has given his findings at para 27 that the appellant had not shown the amount of refund claim of ₹ 1,66,600/- as receivable amount in their Balance Sheet and the Chartered Accountant has not certified that the said amount has been shown in the Balance Sheet to be ‘receivable’. Therefore while holding that doctrine of unjust enrichment is applicable to all the cases of refund irrespective of the amount as refund of duty or otherwise - learned Commissioner (Appeals) has accepted the Chartered Accountant certificate as a piece of evidence to the extent that incidence of tax has not been passed on directly to any other person and in respect of indirect passing of such incidence of duty, his logic was that the amount has been booked as expenditure in the books of account and not as receivable that would clearly establish that the amount has been absorbed in the costing of final products. This finding appears to be erroneous. There is no hesitation to hold that rejection of refund claim of the appellant, which it is entitled to get by virtue as the order of this Tribunal, on the ground of unjust enrichment without any iota of proof of such unjust enrichment is erroneous and is not infirmity to the law - appeal allowed.
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