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2016 (10) TMI 454 - CESTAT MUMBAI

2016 (10) TMI 454 - CESTAT MUMBAI - 2016 (339) E.L.T. 322 (Tri. - Mumbai) - Refund claim - debit note - unjust enrichment - Held that:- there was prearrangement between appellant as a job worker and recipient of the goods i.e. principal that on settlement of the issue of duty on the job work goods, the duty so paid and recovered shall be returned by the appellant to the principal. It is also fact that the principal who is recipient of the goods has issued debit note towards amount of excise duty .....

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quently duty was returned back to the recipient of the goods, how the said amount can be recovered from any other person unless until it is proved by the department on the basis of tangible evidence. - By applying the various judgments, I am of the view that both the lower authorities wrongly credited refund amount into consumer welfare fund. As I stated above, if the transaction of debit note is not found to be incorrect on the basis of books of account of the appellant then it is establis .....

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als) Central Excise, Mumbai whereby the Commissioner(Appeals) by upholding the Order-in-Original No. R/ 279/RA /Belapur-III /R-III/AC/09-10 dated 13/1/2010, dismissed the appeal filed by the appellant. 2. The fact of the case is that the appellant is doing job work for M/s. V N Thakkar Hingwala & Sons for production of blending of Asafoetida with gum and wheat flour and paying duty. The appellant were getting lumpsum amount from their principals. At the end of the month, the appellant were r .....

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thority sanctioned the refund claim but credited it into consumer welfare fund under Section 11B. Aggrieved by the decision of the Adjudicating authority, the appellant filed appeal before the Commissioner (Appeals), who concurring with the findings of the Adjudicating authority dismissed the appeal of the appellant therefore appellant is before me. 3. Shri. Prasad Paranjape, Ld. Counsel for the appellant submits that there is no unjust enrichment existing in the present case for the reason that .....

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ubmits that Ld. Commissioner(Appeals) has discarded the C.A. Certificate produced by the appellant on the ground that C.A. Certificate alone is not proof that incidence of duty has not been passed on to any other person. He submits that it is not only C.A. certificate but debit note also on which C.A. certificate is based. Which is proof that the incidence of duty was borne by the appellant and not by the any other person therefore without considering the fact of debit note C.A. certificate was .....

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ls Ltd. [2011(268) ELT 79(Kar)] (c) M/s. The Pheonix Mills Ltd Vs. CCE, Mumbai(Tri. Mum) Order No. A/866/14/SMB/C-IV]. 4. On the other hand, Shri. Ashutosh Nath, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that once the duty was paid by the appellant and the same was recovered from their principal the incidence of duty stood passed on therefore refund claim is hit by unjust enrichment. Both the lower authorities have .....

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)] 5. I have carefully considered the submissions made by both sides and perused the record. 6. The issue of unjust enrichment is more of facts rather than the legal issue. On the available facts it has to be established that whether the incidence of duty for which refund was sought for, has been passed on to any other person or otherwise. In the present case there was prearrangement between appellant as a job worker and recipient of the goods i.e. principal that on settlement of the issue of du .....

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is no reason to say that incidence of duty paid by the appellant has been passed on to either to the principal or to any other person. I failed to understand if the duty paid by the appellant and initially recovered but subsequently duty was returned back to the recipient of the goods, how the said amount can be recovered from any other person unless until it is proved by the department on the basis of tangible evidence. I find that the judgments relied upon by the Ld. Counsel support his case .....

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