TMI Blog2016 (6) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with these arguments. When the appellants are not liable to pay duty, the amount paid does not have the colour of duty at all. Therefore, the doctrine of unjust enrichment is not applicable to the said amount. The duty was paid by appellant much later after starting of investigations. So it cannot be said that the incidence of duty has been passed on to buyers. When the Department argues that the incidence of duty has been passed on, not directly, but indirectly, then it is for the Department to establish the details of such passing of incidence of duty. It cannot be based on assumptions that incidence of duty is passed on. The refund is not hit by the doctrine of unjust enrichment. - Decided in favor of assessee. - E/27709/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring process. The appeal was allowed with consequential reliefs. iii. The appellants then filed refund claim for refund of ₹ 7,44,520/- paid by them. A show-cause notice was issued to the appellant proposing to reject the refund stating that the refund is hit by unjust enrichment. After due process of law, the original authority vide order dated 17/11/2013 rejected the refund claim as it is hit by unjust enrichment in terms of Section 11B read with Section 12B of Central Excise Act, 1944. iv. Against this order of rejection of refund, the appellant filed appeal and the Commissioner(Appeals) vide the order impugned herein held that the refund claim is hit by unjust enrichment and thereby sanctioned the refund directing the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xporting their finished goods under Bond. Hence no duty was charged in the invoice. The Department has not adduced any evidence to show that the cost of inputs used in R D were factored into the price of exports or DTA sale. He pleaded that the appeal may be allowed. The learned counsel relied on the judgments laid in the following cases i. Advance Steel Tubes Ltd. [2014(30) ELT 370 (Tri. Del.)] ii. Universal Heat Exchangers Ltd. [2015(329) ELT 936] iii. Rocket Engg. Corporation [2014(306) ELT 33 (Bom.)] iv. G.D. Pharma Pvt. Ltd. [2012(282) ELT 280 (Tri.)] v. Sandiv Asia [2015 (323) ELT 431 (Bom.)] 3. Against this, the learned AR Shri S. Srinivasa Reddy supported the findings in the impugned order. He submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their case that as the appellants showed the amount as expenditure in the Profit Loss account, the amount is factored in working out the sale price and so the duty has been passed on indirectly. I am not convinced with these arguments. When the appellants are not liable to pay duty, the amount paid does not have the colour of duty at all. Therefore, the doctrine of unjust enrichment is not applicable to the said amount. 5. The issue whether refund of duty deposited during investigation is hit by doctrine of unjust enrichment was considered by the Honble High Court in the case of CCE, Pune Vs. Rocket Engg. Corporation [2014(306) ELT 33 (Bom.)]. The Honble High Court held in favour of the assessee. In the present case also, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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