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2016 (3) TMI 477 - CESTAT MUMBAI

2016 (3) TMI 477 - CESTAT MUMBAI - TMI - Refund claim - duty liability subsequent to clearance of their products - whether sanctioning of the refund will lead to unjust enrichment? - Held that:- Hon'ble High Court in the case of Commissioner of Central Excise, Chandigarh vs. Modi Oil & General Mills (2007 (1) TMI 31 - HIGH COURT , PUNJAB & HARYANA ) had held that any amount paid subsequent to clearance of the goods, the question of unjust enrichment will not apply

The appeal can be di .....

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al against such dropping of the demand by the adjudicating authority. If that be so, the denial of refund of an amount paid subsequent to clearance of the goods, seems to be inappropriate on the face of the judgment by Hon'ble Bombay High Court in the case of Rockett Engg. Corporation Ltd. (2014 (3) TMI 754 - BOMBAY HIGH COURT ), wherein it has been held that when duty is paid after clearance of goods, on insistence of anti-evasion branch, burden of duty is not passed on to the customers - Decid .....

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,034/-. The said amount was debited by the appellant on 8.11.2006 on the direction of Preventive Officer when they visited the factory premises. The Preventive Officer has informed the appellant that they are liable to discharge the duty liability under the provisions of Section 4A for the goods which were reworked or repacked. The adjudicating authority has held that the amount of duty liability which has been debited by the appellant on the goods cleared were not covered on the date of clearan .....

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It is seen from the records that the appellant had filed certificate from Chartered Accountant, who had audited the records, to the effect that in this case incidence of duty is not passed on. The certificate was disputed by both the lower authorities on the ground that the C.A. certificate has not clearly spelt out that how the view has been arrived by him. 4. The learned Counsel draws attention to the facts of the case and submits that the issue is no more res integra as Hon'ble High Cour .....

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2006 while the clearance took place on 13.6.2005 and 4.3.2006. 5. Learned AR would submit that he has filed a written submission which may be considered. In written submission it is submitted that this Tribunal in the case of Hindustan Petroleum Corporation Ltd. Vs. Commissioner of Central Excise, Mumbai - II - 2015 (317) ELT 379 (Tri-Mum) has held that if the duty paid has been shown as expenditure in the Books of account, the same would be treated as expenditure' and not as claim receivabl .....

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oked as expenditure in the Profit & Loss account then it signifies that the assessee has expensed out the amount in the manufacturing of the final product. It is his submission that duty payment which is shown as expenditure, can be presumed that it has been passed on directly or indirectly. It is his further submission that the appellant though have filed revised balance-sheet with the Income Tax Department showing the amount as receivable in year 2008-09, which is not a case here. On speci .....

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nt was paid on insistence by the Preventive Officers on 8.11.2006. Subsequently, on adjudication, the said demand has been set aside by the adjudicating authority. On a specific query from the bench, learned Counsel submits that the Revenue has not preferred any appeal against such dropping of the demand by the adjudicating authority. If that be so, the denial of refund of an amount paid subsequent to clearance of the goods, seems to be inappropriate on the face of the judgment by Hon'ble Bo .....

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the appeal of the Revenue in view of the refund claim amount being treated as expenditure in the respondent's Profit and Loss Account, these forming part and parcel of the cost of production, thereby stand recovered from the customers. Therefore, sanctioning of the refund will lead to unjust enrichment. (b) Whether in the facts and circumstances of the case and in law the CESTAT is justified in rejecting the appeal of the Revenue in holding that the bar of unjust enrichment will not apply i .....

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of M/s. Allied Photographics India Ltd. 2004 (166) ELT 3(SC) . 3. The issue arising in these appeals is whether the refund of duty deposited during investigation is hit by the doctrine of unjust enrichment. There is no dispute on the assessee respondent being entitled to refund on merits. 4. The Deputy Commissioner of Central Excise upheld the respondent's claim for ₹ 54,339/and ₹ 39,483/on the ground of unjust enrichment. 5. In appeal, the Commissioner of Central Excise (Appeal .....

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on insistence of the Anti Evasion and thus, the burden of duty was not passed on to the customer. 7. Learned counsel for the appellant/revenue, however, relies upon the decision of the Apex Court in M/s. Sahakari Khand Udyog Mandal Ltd. v/s. Commissioner of Central Excise and Customs, (181) ELT 328 (SC) and Commissioner of Central Excise, Mumbai v/s. Allied Photographics India Ltd., 2004 (166) ELT 3 (SC) , wherein the Supreme Court laid down that doctrine of 'unjust enrichment' based on .....

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of duty was on insistence of Anti Evasion Branch of the Central Excise Department. Thus, it was held that the burden of duty was not passed on to its customers. 9. In view of the above concurrent findings of fact, in our view, no substantial question of law arises from the impugned order of the Tribunal. 10. Accordingly appeals are summarily dismissed. No order as to costs. 6.1 Identical issue was before the Hon'ble High Court of Punjab & Haryana in the case of Modi Oil & General Mil .....

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87,824/- determined by the Commissioner deposited by the assessee on 25-3-1998 was paid by the assessee from its own pocket. Therefore, the refund was held admissible. It was also found that in cases where duty is paid subsequent to the date of clearance, the presumption under Section 12B of the Act stood rebutted. However, in respect of the month of March, 1998 the deposit of ₹ 1,36,870/- was not refundable as it had been passed on to the buyer. The Revenue approached the CEGAT against th .....

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be determined finally. The Assistant Commissioner directed the respondents herein on 16-3-98 to deposit ₹ 10,87,824/-more by 25-3-98 as their duty liability for the material period was ₹ 24,87,592/-. The respondents herein deposited a sum of ₹ 10,87,592/- under protest on 25-3-98 and for the month of March 1998 they deposited ₹ 1,36,670/- on 31-3-98. The Commissioner on 3-3-99 finally determined annual production capacity of the furnace. According to the final capacity th .....

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