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2016 (11) TMI 234 - CESTAT MUMBAI

2016 (11) TMI 234 - CESTAT MUMBAI - TMI - Refund - unjust enrichment - Consumer Welfare Fund - Held that: - the respondent have submitted Balance Sheet, Books of Account and Chartered Accountant certificate before the adjudicating authority to the effect incidence of duty has not been passed to any other person - the appellant, in addition also submitted the declaration of the customer to the Commissioner (Appeals) wherein it was declared by the customer that they have not received the supplemen .....

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authority but the same was credited to the Consumer Welfare Fund under Section 12C of the Central Excise Act, 1944, on the ground that the respondent could not prove that the incidence of duty has not been passed to the customer. Aggrieved by the Order-in-Original, the appellant filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) considering the documents submitted by the respondent before the adjudicating authority and also on the declaration of customer regarding non- .....

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the CENVAT credit nor made any payment of amount paid by the respondent. He submits that the Commissioner (Appeals) on his own accepting the said documents held that incidence of the duty has not been passed on. The learned Commissioner (Appeals) was supposed to get the said declaration of the customer verified through the department. Therefore the genuinity of the declaration has not been verified. 3. On the other hand Shri Jitu Motwani, learned Counsel appearing on behalf of the respondent sub .....

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eclared that they have neither availed the CENVAT credit in respect of refund amount nor any payment made towards the same. He submits that the learned Commissioner (Appeals) after satisfied with all the submission held that the incidence of duty had not been passed on. The department appeal is only on ground that the learned Commissioner (Appeals) has not got the said declaration verified, which has no basis for the reason that Commissioner (Appeals) is competent enough to ask additional docume .....

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hority to the effect incidence of duty has not been passed to any other person. There is no dispute that the amount of refund claim has been shown as indirect taxes recoverable under the head Long Term Loans and Advances in the Balance Sheet for the year 2013-14. In our view the aforesaid documents submitted by the respondent was sufficient evidence to prove that incidence of duty paid by the respondent was not passed on. Moreover the appellant, in addition also submitted the declaration of the .....

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er submitted by the respondent before the Commissioner (Appeals) has not under gone the verification by lower authorities. We do not agree for reason that the Commissioner (Appeals) has not decided the appeal only on the declaration of the customer submitted by the respondent, but he has also taken into consideration the Balance Sheet, Chartered Accountant certificate and other documents submitted by the respondent to the adjudicating authority. The relevant findings of the Commissioner (Appeals .....

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pugned Order-in-Original. (iii) All these original, duplicate and triplicate invoices were with the lower adjudicating authority. The appellant's contention that the same were not sent to customers thus can't be doubted. (iv) All their buyers in their letter head and mostly under their stamp have signed and certified that they have not received any of these Excise invoices and have not taken the credit thereon. They have further stated that they have no objection for the appellant taking .....

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the department there should also have been no need to call for the CA certificate at all leave apart from calling it again. Once basic documents in original are available with the department the observation and findings should be based on original records rather than on the basis of any certificate by any certifying officer issued on inspection of these very records. Department has also not adduced any material anamoly between the duty involved within the invoices and the CA certificate. 14. As .....

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