TMI Blog2015 (6) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... ential duty is paid subsequent to the clearance of the goods. Moreover, in the present case, there is no dispute that in respect of payment of differential duty under protest, whose refund is claimed, no supplementary invoices had been issued. Had such supplementary invoice been issued, a presumption could be made under Section 12 B of the Central Excise Act but in absence of such supplementary invoice, no presumption can be made. We have gone through para-91 of the Apex Court's judgement in the case of Mafatlal Industries (1996 (12) TMI 50 - SUPREME COURT OF INDIA ) cited in the grounds of appeal and we are of the view that the observations of the Apex Court in that para are not applicable to the facts of this case at all. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid subsequent to the clearance by way of payment under TR-6 challans, the bar of unjust enrichment would not apply. The Commissioner (Appeals) in the order also observed that the Apex Court's judgement in the case of Mafatlal Industries Ltd. Vs. UOI reported in 1997 (89) ELT 247 (SC) and in case of Jyothi Structure Ltd. Vs. CCE reported in 2003 (156) ELT 853 (Tribunal) are not applicable to the facts of this case. Against this order of the Commissioner (Appeals), the Revenue is in appeal. 2. Heard both the sides. 3. Shri Pramod Kumar, ld. Departmental Representative, assailed the impugned order by reiterating the grounds of appeal in the Revenue's appeal and pleaded that the order passed by the Commissioner (Appeals) is con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent have discharged the burden of proof cast on them and they had absorbed the incidence of duty whose refund is claimed by them. He, therefore, pleaded that the impugned order is not correct. 4. Ms. Surabhi Sinha, Advocate, the ld. Counsel for the respondent, citing the judgement of the Tribunal in the cases of Plas Pack Industries Vs. CCE, Ahmedabad reported in 2004 (167) ELT 422 (Tribunal), Industrial Cables Vs. CCE, Chandigarh reported in 2002 (140) ELT 543, Easter Industries Ltd. Vs. CCE, Meerut reported in 2003 (161) ELT 1034 and also in the case of CCE, Ponchicherry Vs. Southern Agrifune Indus. Ltd. reported in 2004 (178) ELT 980 pleaded that bar of unjust enrichment is not attracted when the duty is paid subsequent to the clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s held that the bar of unjust enrichment is not attracted when the differential duty is paid subsequent to the clearance of the goods. We find that the Tribunal in its earlier judgement in the case of Gwalior Oil Mills Vs. Commissioner reported in 2002 (52) RLT 648 (CEGAT) had also held that the presumption under Section 12 B of the Central Excise Act that incidence of duty has been passed on to the customer would not apply when the duty whose refund has been claimed has been paid subsequent to the clearance of the goods and same view has been taken by the Tribunal in the case of Punjab Beverages Pvt. Ltd. VS. CCE, Chandigarh reported in 2000 (118) ELT 506 (Tribunal). Moreover, in the present case, there is no dispute that in respect of pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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