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2016 (12) TMI 839 - CESTAT NEW DELHIRecovery of refund already made - unjust enrichment - Refund claim - unjust enrichment - finalization of provisional assessment - Held that: - It is fairly well settled that the test of unjust enrichment prescribed in Section 11B of the Central Excise Act, 1944, will be applicable only to the net adjusted duty arising as refund and not to the duty passed on in each invoice - the Commissioner (Appeals) have allowed the refund to be paid and in support of his contention held that the authority while passing the order has not correctly followed the word duty passed on. Here the word is duty and not Cenvat Credit and further words duty passed on materialises only when the duty involved has been collected from buyer and as in the case the duty collected is as per final bills made subsequent to final assessment order, the duty reimbursed against the final bills only can be said to have passed on and not the duty indicated in invoices and paid by appellant to exchequer making the payment on provisional basis as per the provisional assessment order made by authority. In above terms the appellant is entitled for the refund of excess duty paid provisionally at the time of clearance of goods. Refund allowed in cash - appeal dismissed - decided against Revenue.
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