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2023 (8) TMI 1042 - CESTAT HYDERABADRefund of excess amount paid under the Provisions of section 11D(2) of CE Act - Burden of duty - time limitation - principles of unjust enrichment - HELD THAT:- On a plain reading of Section 11D(1), sub-Section (1) provides that the person who has collected tax, upon finalization of assessment, if it is found to have been collected in excess, such excess tax has to be deposited with the Central Government. Under the admitted facts, HSL has deposited the amount collected from ONGC with the Central Government. Sub-Section (2) to Section 11D provides that upon adjustment of the tax pursuant to finalization of assessment, if any surplus is left, then either such surplus shall be credited to the Fund (Consumer Welfare Fund) or, as the case may be, refunded to the person who has borne incidence of such amount, in accordance with the provisions of Section 11B - admittedly, there is no dispute on the fact that the Respondent Assesee has borne the incidence of the amount of Rs 97,67,087/-. Principles of unjust enrichment - HELD THAT:- As informed by the Counsel for the Respondent, that the pursuant to directions in the Order-in-Appeal for remand on the ground of unjust enrichment, the Adjudicating Authority cannot have adjudicated and cannot reject the refund holding that the Respondent Assessee does not satisfy that they have not passed on the burden of duty against which order, the Respondent Assessee has gone in appeal before the Commissioner(Appeals). There are no error in the impugned Order-in-Appeal of the Commissioner (Appeals) and the same is accordingly upheld - appeal dismissed.
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