TMI Blog2016 (5) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is seen that Commissioner (Appeals) has not considered the Certificate of Chartered Accountant furnished by the appellant, which states that the incidence of tax has not been passed on to other. It is for the department to show by adducing some material that the incidence of tax has been passed on. As during the relevant period, the said services were not taxable, the issue held in the appellant's favour. Merely because the amount was shown as expenditure it cannot be concluded that the burden of tax has been passed on to other indirectly. The burden rests upon the department to prove that this amount had been recovered by appellant from buyer as increased price.Therefore, by following the ratio of various judgments the claim of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposing to reject the claim on the ground of being time barred as per Section 11B of the Central Excise Act, 1944. After adjudication, the Original authority vide Order dated 30-12-2011 held that the refund claim is filed within the specified time limit of one year from the relevant date. However, the refund claim was rejected observing that appellants have not proved that the burden of duty has not been passed on to other person. The appellants carried the issue before the Commissioner (Appeals) who vide the Order impugned herein, sanctioned the refund, but ordered the amount to be credited to be Consumer Welfare fund. Being aggrieved the appellants have preferred the present appeal. 3. The learned counsel appearing for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellants having failed to do so, the Commissioner (Appeals) has rightly ordered the sum to be credited to Consumer Welfare Fund. 5.1 have heard the rival submissions. The Commissioner (Appeals) has ordered the sanctioned refund to be credited to the Consumer Welfare Fund. It is observed in the impugned order that because, the appellants showed the amount of ₹ 89,1507- as expenditure in the books of account, they have passed on the burden to their customers and therefore, the refund claim is hit by unjust enrichment. Though the appellants produced the Certificate of Chartered Accountant, it is seen that Commissioner (Appeals) has not considered the Certificate of Chartered Accountant furnished by the appellant, which states t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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