TMI Blog2014 (12) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... aintained by the appellant, in their certificate dated 14-8-2009 has also endorsed the said fact. As held by Hon’ble Rajasthan High Court in the case of UOI v. A.K. Spintex [2008 (11) TMI 89 - RAJASTHAN HIGH COURT] the presumption under Section 12B is a rebuttable presumption and once the assessee produces evidence in support of his claim of having not passed on the incidence of duty whose refund is claimed, to the customers, the burden of proof would shift to the Department to prove that the claim of the assessee is false - Refund allowed. - E/458/2006-EX(DB) - Final Order No. A/55041/2014-EX(DB) - Dated:- 26-12-2014 - Shri Rakesh Kumar, Member (T) and S.K. Mohanty, Member (J) Shri B.L. Narsimhan, Advocate, for the Appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as confirmed in the Order-in-Original dated 30-12-1987. The Central Excise duty was deposited by including the cost of secondary packing in the assessable value of the torches. Consequent upon the favorable decision by the Tribunal vide order dated 30-11-1998, the appellant had filed the application, claiming refund of excess duty paid under protest, which was dismissed by the authorities below. Hence, this present appeal before this Tribunal. 2. Sh. B.L. Narsimhan, the ld. Counsel appearing for the appellant submitted that the appellant did not recover the duty paid on the secondary packing from the customers, as such excess payment of duty has been accounted for under the heading Loans and Advances in the Balance Sheet as recoverabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings recorded in the impugned order and submitted that the refund is not permissible to the appellant, since the incidence of duty element has been passed on to the consumers. 4. Heard the Ld. Counsel for both sides and perused the records. 5. The issue involved in the present case for consideration by this Tribunal is with regard to applicability of the doctrine of unjust enrichment to the refund application filed by the appellant i.e. whether the amount of refund should be paid to the appellant or to be credited to the Consumer Welfare Fund, by way of rejection of the refund application. 6. Claim for refund of Central Excise duty is contained in Section 11B of the Central Excise Act, 1944. In terms of sub-section (1) of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of sanctioning in favour of the applicant. 7. The appellant was all along contesting the issue of leviability of Central Excise duty on the cost of secondary packing with the Central Excise department. Therefore, during initial period, the appellant did not discharge any duty on the secondary packing. The appellant started paying duty on the secondary packing under protest subsequent to the Adjudication Order dated 30-12-1987. It is an admitted fact on record that the protest payment of duty has not been recovered by the appellant from its customers. This fact is evident from the books of accounts maintained by the appellant, where the customer s account has not been debited with such duty amount. The duty paid on the secondary packing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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