TMI Blog2014 (12) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... llant has borne the incidence of duty and the said duty incidence had not been passed on to any other person. In view of the verification done by the jurisdictional Range Officer, it is not understandable how the Revenue can take a plea that the appellant has not crossed the bar of unjust enrichment. There is no evidence adduced or forthcoming from the Revenue showing that the appellant has passed on the incidence of duty to their buyers. In fact all the invoices for the transaction issued from factory as also from the depot were verified by the Range Officer, who after verification has reported that the appellant has borne the incidence of duty and has not passed on the incidence to any other person. In view of this clear finding recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as removal or any other date nearest to the date of clearance of the goods from the factory. The nearest date taken by them was nearest date prior to the removal of the goods from the factory. However, the Commissioner (Appeals) vide Order No. SR/198/NGP/ 2009, dated 11-9-2009 held that the nearest date to be taken for the purpose of assessment is the nearest date to the date of clearance of the goods from the factory either prior to or subsequent to date of removal from the factory. When the nearest date was taken in terms of the above order, it was found that the appellant had discharged excess duty to the tune of ₹ 30,90,857/-. Accordingly, they filed a refund claim dated 11-12-2009 for refund of the excess duty paid. The said ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the appeal of the Revenue by setting aside the order of refund sanctioned by the Assistant Commissioner. Simultaneously a show cause notice was also issued for grant of erroneous refund for the same amount and for the same period, which was adjudicated by the Addl. Commissioner and the Addl. Commissioner held that refund of ₹ 30,90,857/- sanctioned was erroneous, inasmuch as the appellant had not proved that they had not passed on the incidence/burden of duty to their buyers and accordingly, he held that the appellant is liable to pay back the amount of refund sanctioned vide order dated 22-2-2012. The said order was challenged by the appellant before the lower appellate authority, who rejected the appeal of the appellant. Thus, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order setting aside the order of the adjudicating authority is not sustainable in law. It is also his contention that all the invoices covering the transactions were produced to the Revenue and the jurisdictional authorities have verified these details and only after verification, the refund was sanctioned. Therefore, the Revenue cannot allege that the appellant has not borne the incidence of duty and had passed on the same to somebody else. Accordingly, he pleads for allowing the appeal. 4. The learned Addl. Commissioner (AR) appearing for the Revenue reiterates the findings of the appellate authority. 5. We have carefully considered the submissions made by both the sides. 5.1 In the order dated 31-8-2010 while sanctioning the ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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