TMI Blog2006 (10) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is altogether irrelevant for the purpose of refund. Viewed from this perspective, it is clear that the certificate of the Chartered Accountant does not satisfy the requirement. It is to be noted that Section 11B of the Central Excise Act makes no distinction in relation to refund, between a private enterprise and a Govt enterprise. Central Excise Act makes no distinction based on the ownership of an enterprise. The judgment of the Hon ble Karnataka High Court in the case of CCE, Bangalore v. Karnataka State Agro Corn Products Ltd. [ 2006 (7) TMI 11 - HIGH COURT OF KARNATAKA (BANGALORE)] was in the context of the State Govt. unit producing items and supplying them to State Govt. authorities for free distribution. In the present case, situ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 (202) E.L.T. 47, in support of the contention that unjust enrichment is inapplicable to State undertakings. He has also referred to the decision of the Tribunal in the case of Jaipur Syntex Ltd. v. CCE, Jaipur reported in 2002 (143) E.L.T. 605 to contend that when the balance sheet shows the amount in question as disputed amount, unjust enrichment would not be attracted. 4. The submission of the ld. DR is that the question involved is purely a question of fact and, if, as a matter of fact, tax has been passed on to the buyer, provisions of unjust enrichment is attracted. He has also referred to the judgment of the Hon ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. v. CCE reported in 2005 (181) E.L.T. 328, in support of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their claim that excess duty was not passed on to the buyer, the appellant have failed to produce any evidence before me. Thus the appellant could not discharge their obligations to prove that the amount of refundable excise duty has not been passed on the ultimate buyers. The Hon ble Supreme Court in the case of M/s. Mafatlal Inds. Ltd. reported in 1997 (89) E.L.T. 247 (S.C.) has held that all claims for refund except where levy is held to be unconstitutional, to be preferred and adjudicated upon under Section 11B of the Central Excise Act, 1944 and subject to claimant establishing that burden of duty has not been passed on to the third party . The citation of facts in the above para makes it clear that the appellants sale price of cement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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