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2023 (9) TMI 288 - AT - Central ExciseRefund claim - goods used for captive consumption - Applicability of principles of unjust enrichment - HELD THAT:- With disposal of appeal by the Tribunal, the MODVAT credit utilized was rendered legal and the other debit being moneys paid other than as duty. That the duty so legalized may be presumed to have been passed on with the value of the goods cleared is not in issue. The issue concerns the payment made again on 7th August 2000 and could neither have been ‘expense’ of 2000-01 nor ‘duty’ of 2000-01. The conclusion that recognition as ‘income’ in the year of sanction, which it undoubtedly was, does not automatically turn that into ‘expense’ of earlier years. In UNION OF INDIA VERSUS SOLAR PESTICIDE PVT. LTD. [2000 (2) TMI 237 - SUPREME COURT] it was held that evidence of duty incidence not having been passed on cannot be claimed to be unavailable and, therefore, entitling claimant to exclusion from the onus of section 11B of Central Excise Act, 1944 does not bar the test of unjust enrichment. Appellant has furnished certification from Chartered Accountant that amount was not debited against any particular clearance. Without evaluation of the pricing practice of the appellant for ‘lubricant’, discard of the certification on supposition of it having been treated as ‘expense’ and, therefore, built into the manufacturing cost of products cleared after 2000 is neither logical nor consistent with obligation of appellate authorities to restrict fact finding only upon evidence. In a departmental appeal, that should have been preferred as a ground of appeal on the basis of computation; a finding without such factual evaluation, in circumstances of that onus resting on the reviewing authority, cannot sustain. The certification by Chartered Accountant, considering the contents therein, suffice for discharging obligation to demonstrate that incidence of such duty has not been passed on - impugned order set aside - appeal allowed.
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