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TMI Blog2014 (8) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... gation on 03.07.2003, consequent upon detection of shortage of 28,028 Kg. imported POY by the Central Excise Officers on 24.06.2003. However, the adjudicating authority held vide his order dated 17.02.2009 that actual shortage of imported POY was 7,703 Kgs. involving duty of Rs. 2,57,253/-. On 26.08.2009, the respondent filed refund claim of the excess deposit of Rs. 6,78,784/- made with the jurisdictional Deputy Commissioner, who rejected the same vide his Order in Original dated 12.01.2010 on the grounds that the respondent failed to prove that the incidence of duty paid had not been passed on to another person. On an appeal filed by the respondent, the Commissioner (Appeals) allowed the appeal vide his impugned Order in Appeal holding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigations. In this context, he cited the case law Sweet Trade Vs. Commissioner of Central Excise, Mumbai-IV - [2008 (230) ELT 363 (Tri. Mumbai)]. (ii) That the Department in its appeal has not disputed the factual reasoning based on which the learned Commissioner (Appeals) has held non applicability of unjust enrichment. Consequently, in the absence of any contrary evidence and any challenge to the factual finding of the learned Commissioner (Appeals) in the impugned order, the Departments argument is not sustainable on merits also. (iii) Since the present case does not involve sale under any invoice to a buyer, the normal burden envisage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for refund of such duty would not be allowed under Section 27(1) of the Act. 20. We are of the opinion that the aforesaid observations would be applicable in the case of captive consumption as well. To claim refund of duty it is immaterial whether the goods imported are used by the importer himself and the duty thereon passed on to the purchaser of the finished product or that the imported goods are sold as such with the incidence of tax being passed on to the buyer. In either case the principle of unjust enrichment will apply and the person responsible for paying the import duty would not be entitled to get the refund because of the plain language of Section 27 of the Act. Having passed on the burden of tax to another person, directl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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