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M/s. Afcons Infrastructure Limited Versus Commissioner of Central Excise & S.T., Daman

Denial of refund claim - unjust enrichment - appellant had not furnished sufficient evidence that the incidence of duty was not passed on to their customers - Held that:- The Commissioner (Appeals) observed that the appellant have not submitted the details as to how they arrived at the pricing of the material at the time of bidding for the award of contract with their customer. He further observed that how the payment of excise duty made by the appellant was treated in computation of their prici .....

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of the contract. It will be necessary in the case, when the Auditor s certificate is not accepted as incomplete or any other reason.

Nuclear Power Corporation Limited, a Government of India Enterprise had confirmed that they have not reimbursed any Excise Duty to the appellant against the excise duty paid on the invoices of the manufacturer. Thus, the other person in Section 11B(1), has certified that they have not reimbursed the duty. In such situation, in my considered view, there .....

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: Shri Alok Srivastava, Authorised Representative ORDER Per : Mr. P.K. Das; The appellant filed this appeal against the rejection of refund claim, on the ground that they could not produce any evidence to substantiate that they have not passed the incidence of duty to the customers. 2. The relevant facts of the case, in brief, are that the appellants were engaged in the construction of Turbine Building, CCW Plant, Pump Houses etc. as per agreement with Nuclear Power Corporation Limited, a Govern .....

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2003, M/s. PSL informed that the appellant had paid the Central Excise duty and therefore, they are eligible to get the refund of duty under Section 11B of the Central Excise Act, 1944. Accordingly, the appellant filed refund claim for ₹ 20,45,807/-. 3. A show cause notice was issued proposing to reject the refund claim. The adjudicating authority rejected the refund claim on the ground that the appellant have not furnished any documentary evidence that the incidence of duty was not passed .....

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at they have not reimbursed the excise duty to the appellant. He submits that the Commissioner (Appeals) erroneously proceeded on the basis that the appellant have not produced the costing of products. It is his submission that Chartered Accountant after examining the books of accounts certified that duty amount was not reimbursed by the customer. Hence, it is not the domain of the Central Excise authorities to ask for the costing of goods. He relied upon various decisions. 5. On the other hand, .....

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f CCE, Mumbai-II vs. Allied Photographic India Limited 2004 (166) ELT 3 (SC). 6. After hearing both the sides and on perusal of the records, I find that the manufacturer paid the duty under protest. They have requested the appellant to claim the refund as the duty element was borne by the appellant. The refund claim was rejected on the ground that the appellant had not furnished sufficient evidence that the incidence of duty was not passed on to their customers. It is seen from the records that .....

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details as to how they arrived at the pricing of the material at the time of bidding for the award of contract with their customer. He further observed that how the payment of excise duty made by the appellant was treated in computation of their pricing and in their books of accounts. I find that after examining the books of accounts, the auditor by certificate dated 27.4.2004 had certified that no part of duty paid by the appellant has been reimbursed by the customer. The genuinety and authenti .....

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e incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person , in sub-Section(1) of Section 11B of the Central Excise Act, 1944, make it clear that the applicant is required to produce the evidence that the other person had not paid the duty amount to the applicant. In present case, the appellant discharged the burden by producing certificate dated 10.12.2003 from their customer namely, Nuclear Power Corporation Limited. For the purpose of pr .....

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