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2015 (11) TMI 1470 - AT - Central ExciseDenial of refund claim - Unjust enrichment - returned of excess duty through debit / credit Notes - claimant has not been able to prove that the burden of excise duty had not been passed on to the buyers - Held that:- appellant, though initially charged duty in the sale invoice, who on clarification that they have paid the excess duty, issued credit notes and against the said credit notes, the buyer of the goods has returned the excess charged excise duty. The appellant accounted for the said amount in their balance sheet as receivable under the head loan and advances. The lower authority verifying these facts and following the direction of the Commissioner (Appeals) given in the earlier order dated 5.2.2008 applying the ratio of the ONGC case (2003 (10) TMI 108 - CESTAT, NEW DELHI), sanctioned the refund. It is not open for the Revenue to challenge the finding of the Commissioner (Appeals)’s order dated 5.2.2008 without filing any appeal against the same. Therefore, the impugned order of the Commissioner (Appeals) cannot be sustained. - it is settled that even if the excess duty for which refund is sought for is collected but subsequently returned by way of credit note, it cannot be said that the incidence of refund amount has been passed on. It is also observed that since the appellant admittedly accounted for the said amount as ‘receivable’ in the balance sheet, it is a sufficient evidence to hold that incidence of duty has not been passed on, otherwise the amount cannot be accounted for as receivable. - appellant is entitled for the refund and the learned lower adjudicating authority has rightly sanctioned the refund claim - Decided in favour of assessee.
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