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2015 (11) TMI 208 - CESTAT MUMBAI

2015 (11) TMI 208 - CESTAT MUMBAI - 2016 (333) E.L.T. 380 (Tri. - Mumbai) - Denial of refund claim - Section 11B - unjust enrichment - held that:- from the original order that appellant have submitted C.A. Certificate as well as their balance sheet. The original authority has verified the said documents and came to the conclusion that the amount of refund has been shown as receivable under the head of “loans and advances”, the same has been certified by the Chartered Accountant. From the said re .....

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early based on the balance sheet. Moreover Ld. Commissioner has not discussed anything as regard amount shown receivable under the head of loan and advances which is conclusive evidence of proof of not passing of incidence of duty. Therefore the Commissioner (Appeals) has made serious error in not considering the C.A. certificate as well as balance sheet in proper perspective. Therefore impugned order suffers with serious infirmity - Impugned order is set aside - Decided in favour of assessee. - .....

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The facts of the present case is that the appellant filed refund claim for an amount of ₹ 1,29,676/- and ₹ 77,788/- with the Jurisdictional Asstt. Commissioner, Central Excise, under Section 11B. The adjudicating Authority allowed the refund claim considering facts that there is excess payment of duty and also verified aspect of unjust enrichment. Aggrieved by the said order, Revenue filed appeal before the Commissioner (Appeals), who vide impugned order held that the appellant has .....

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alongwith their balance sheet wherein amount of refund clearly shown as receivable account under the head loan and advances in the assets side of the Balance Sheet and considering this fact the original authority has observed that incidence of refund amount has not been passed on to any other persons. He submits that Ld. Commissioner (Appeals) allowed the Revenues appeal only on the ground that C.A. Certificate submitted by the appellant is not proper as he contended that the basis of certific .....

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terates the findings of the impugned order. He submits that Ld. Commissioner has observed that appellant during the process of refund the appellant have submitted documents such as credit note etc. to establish that the duty so charged in the invoices has not been collected from buyer therefore he could not prove that incidence of refund amount has not been passed on to any other person. He submits that since at the time of the clearing of the goods appellant have charged excise duty in the invo .....

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verified the said documents and came to the conclusion that the amount of refund has been shown as receivable under the head of loans and advances , the same has been certified by the Chartered Accountant. From the said records, I do not find any reason that what else is required to establish that incidence of duty has not been passed on to any other person. As regard the unjust enrichment the original authority has given findings which is extracted below: As regards point No. (b), I find that t .....

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n their Schedule I of the Balance Sheet. Upto 30.9.2009. A certificate dtd. 4.10.2010 from the Chartered Accountants certifying that the said amount of refund has been shown under the schedule LOANS & ADVANCES and the said amount is not recovered by the company from any party. Relying on the same, I find that the clause of unjust enrichment cannot be made applicable. Further I rely on the case law CC, Cochin Vs. Rajesh Chemicals, 2006 (196) ELT 064 (T) Unjust enrichment Excess payment of dut .....

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fund claims is relating to compliance of the provisions on the principle of unjust enrichment. The above Chartered Accountants certificates merely say that their assessee have provided for these two refund claims in their financial statements i.e. they have shown these amounts as recoverable from the department. However, it is not clearly understood on what basis they have certified that the excess duty paid has not been recovered from their parties. At the end of the certificates, they have al .....

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