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2023 (11) TMI 159 - AT - Central ExciseRefund claim - rejection of claim of the appellant for non-production of challans showing nil payment of duty on those goods in the warehouse - principles of unjust enrichment - HELD THAT - It is well-settled that show cause notice is the foundation of all proceedings and in appellate disposal only the issue in appeal may be argued or abetted. Failure to challenge assessment as an impediment to sanction of refund was not an issue thus far in the present dispute and in the absence of appeal/memorandum of cross-objections on behalf of Revenue a fresh ground entered by Learned Authorized Representative does not merit consideration. The original authority has premised ineligibility with the finding that the date of sale of goods being undisputedly after the levy came into force there is no alternative but for duty to be discharged. This is an improper appreciation of the nature of this levy and more so on induction of impugned goods into the list of taxable goods. Being a tax on manufacture goods produced prior to the levy having come into force are not to be subjected to duties of central excise - stock transfer as an internal nomenclature has nothing to do with clearance of goods which would be subjected to dutiability from 1st March 2011. It is clear from the communication of the Central Board of Excise Customs (CBEC) supra that the specific aspect referred to in the order of the original authority is restricted to goods lying in the registered factory premises as on date of imposition of levy which uncontestedly is not the issue here. As the impugned goods were not dutiable eligibility for refund should follow. The claim of the appellant being that duty had nonetheless been discharged it was incumbent upon them to demonstrate such payment. The appellant had submitted details of goods lying elsewhere and to the extent that these can be correlated that onus will stand discharged. It is on record that the appellant had in proceedings before the original authority submitted that challans could be produced and it is on record that these had not been. Therefore it is only appropriate that this be complied with and upon such there need be no further controversy over duty having been discharged on non-dutiable goods. Section 11B mandates that all refunds undergo the test of bar of unjust enrichment and it falls upon the appellant to successfully navigate that. The refund application restored before the original authority for fresh processing - impugned order set aside - appeal allowed.
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