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2017 (9) TMI 610 - CESTAT NEW DELHIUnjust enrichment - Refund claim of excess duty paid - rejection on the ground that the appellant has not opted for provisional assessment during the impugned period - Whether the appellant has been able to discharge their burden of unjust enrichment or not? - Held that: - Revenue has not produced any contrary evidence to show that the buying unit has taken cenvat credit of excess duty paid by the appellant. The allegation of the Revenue is only based on presumptions and assumptions which is not sustainable in law - benefit of doubt goes in favor of the appellant as per the undertaking filed by buying unit - the appellant has been able to discharge their burden of unjust enrichment and is entitled to refund claim in question. Whether the appellant was required to opt for provisional assessment or not? - Held that: - the appellant has approached for a permission for provisional assessment under Rule 7 of Central Excise Rules, 2002 for the financial year 2005-06, the said request was rejected. In that circumstances, it cannot be said that the appellant has not applied for provisional assessment. The appellant is entitled for refund claim - appeal allowed - decided in favor of appellant.
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