TMI Blog2016 (7) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... int Commissioner took the view that though HBL had not recovered the impugned amount from M/s. ITL, they have failed to prove that this amount have not been recovered from other customers and thus held that the case is hit by unjust enrichment. - the refund has been correctly sanctioned by the original authority - Decided in favor of assessee. - E/451/2010, E/475/2012, E/26586/2013 - Final Order No. A/30486-30488/2016 - Dated:- 20-5-2016 - Ms. Sulekha Beevi, C.S., Member (Judicial) and Shri Madhu Mohan Damodhar, Member (Technical) Shri Y. Sreenivasa Reddy, Advocate for the appellant Shri H.M. Dixit, Asst. Commissioner (AR) and Shri Ajit Kumar, Asst. Commissioner (AR) for the respondent. ORDER This is a set of three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recoverable. Aggrieved of the said order dt. 22/06/2011 , the appellants filed appeal before the Commissioner(Appeals-lll). The Commissioner(Appeals-III) in his OIA No. 110/2011(H-III)CE dt. 05/12/2011 (in Appeal No.75/2011(H-III)CE upheld the order of the Assistant Commissioner and rejected the appeal of the appellants. 2.3. As the Initial OIO dt. 17/12/2008 was reviewed and was ordered to be appealed against, the divisional AC/DC had issued a protective demand notice (SCN) dt. 30/09/2009 under Section 11A, treating the refund already sanctioned vide OIO dt. 17/12/2008 as erroneous. Now, in pursuance of the said SCN dt. 30/09/2009. After due process, the Additional Commissioner, Customs, Central Excise Service Tax ordered for recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of enrichment. 5. As state earlier, the first appellate authority remanded the matter for de novo consideration against which the appellant has filed Appeal No.E/451/2010. In response to this remand order, the Joint Commissioner passed an order dated 22/06/2011 rejecting the refund claim on the ground that the appellant had failed to prove that he had not passed on the duty to any other person. The appellant filed an appeal against this de novo order to the Commissioner(Appeals), who vide order-in-appeal dated 05/12/2011 upheld the said de novo order. The appeal No.475/2010 is filed challenging this Order-in-Appeal. 6. In the meantime, protective show-cause notice proposing recovery of erroneously granted refund was issued on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/07/2008 requested for allowing the amount under reference as credit in their CENVAT credit account. As per the directions of divisional office vide letter C.No.V/85/18/2005/08-R dt. 16/09/2008 the unit preferred the present refund claim. 9. Thus we find that in the first instance, the competent authority was fully satisfied that refund was not hit by unjust enrichment. We further see that when this order was appealed against by the department, the Commissioner(Appeals), though observing that the refund can be claimed and paid when the accounts are finally settled, once the refund is due to price variation clause in the purchase order , remanded the matter. Surprisingly, in the said consequential de novo proceedings, the Joint Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in unjust enrichment. It is that amount which is required to be credited to the Consumer Welfare Fund. The fact that the Consumer Welfare Fund has been constituted does not on that score require the authorities dealing with refund claims to start an enquiry as to the price at which the goods had been sold to the ultimate consumer after the dealer who purchases the goods from the manufacturer, sells to its sub-dealer who in turn may sell to a retailer who in turn ultimately may sell the same to the actual consumer. The enrichment of the person, who has paid the duty and seeks refund would be unjust if he even while not suffering the burden of duty after having passed on the same to another obtains refund and retains such refund with him. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
