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2022 (5) TMI 794 - AT - Central ExciseRefund claim - deposit/amount paid under protest - unjust enrichment - presumption could be drawn against an appellant or not - HELD THAT:- The reasons attributed for rejecting the refund are not sustainable since, as held by the Hon’ble Bombay High Court in the case of THE COMMISSIONER OF CENTRAL EXCISE, PUNE1 COMMISSIONERATE VERSUS M/S SANDVIK ASIA LTD. [2015 (10) TMI 719 - BOMBAY HIGH COURT], the entries in the Books of Accounts are immaterial and irrelevant and no presumption could be drawn against an appellant if it is shown on the expense side. It is the well settled position of law that unless the Revenue has any documentary evidence, the statute does not permit any action to be taken based only on assumptions and presumptions. Moreover, the appellant has filed a certificate issued by a Chartered Accountant to the effect that the appellant had not passed on the incidence of CENVAT Credit to its customers/any other person, which the Revenue has nowhere disputed nor is there any attempt made to dislodge the veracity of the said certificate by any concrete evidence. It is also a matter of record that the appellant had reversed the same subsequently after removal of goods and hence, there is no scope to even allege that the same was charged or collected from the appellant’s customers. The reasons attributed and the denial thereof are without any basis and hence, unsustainable - Appeal allowed - decided in favor of appellant.
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