2009 (7) TMI 657

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..... his appeal filed by the assessee is against the rejection of the refund claim for Rs.1,66,240/-. During the material period, the assessee was clearing their products at factory gate and, in some cases, they incurred the cost of transportation of the goods to the buyers premises. From some of the buyers, the assessee recovered transportation charges in excess of the amount actually spent. This exce .....

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..... nce the duty paid thereon was in order, and (c) that no evidence was adduced by the assessee against the bar of unjust enrichment. In the result, the refund claim stood rejected in toto. Aggrieved by this, the party preferred an appeal to the Commissioner (Appeals), but unsuccessfully. In the present appeal, they have claimed to be entitled to refund and have also claimed that adequate evidence is .....

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..... of duty of P.s. 63 for which refund claim was filed within time. He has tac l admitted that the rest of the claim is time-barred. 5. After giving careful consideration to the submissions, I find that the question to be considered is whether the appellant is eligible for cash refund of duty of Es. 63,975/-. This claim is admittedly within time. Both the lower authorities have rejected this claim .....

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..... efund claim in question arose during the reign of transaction value and the same needs to be examined differently from the manner in which similar refund claims were considered for periods prior to 1-7-00. In the instant case, admittedly, the assessee recovered extra transportation charges from their buyers, paid duty thereon by way of debit in CENVAT account and issued regular invoices to the buy .....

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..... was paid on the excess transportation charges recovered from the buyers and that such payment of duty was made by way of debit in CENVAT account and that regular statutory invoices were issued to the buyers handing down the duty liability to them. This fact could only reinforce the department's case that the burden on the assessee to adduce evidence against the bar of unjust enrichment is yet to b .....

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