TMI Blog2016 (12) TMI 1514X X X X Extracts X X X X X X X X Extracts X X X X ..... cise duty without actually collecting the excise duty - BHEL has categorically stated that they have not paid the excise duty raised in the invoice which establishes that the duty burden has not been passed on - refund is not hit by unjust enrichment - appellant is eligible for refund - appeal allowed - decided in favor of appellant. - Appeal No. E/21590/2014 - A/31323/2016 - Dated:- 18-11-2016 - Ms. Sulekha Beevi, C.S., Member (Judicial) Sh. Lalit Mohan Chandna, Advocate for the Appellant Sh. Arun Kumar, Deputy Commissioner (AR) for the Respondent ORDER [ Order per: Sulekha Beevi, C.S. ] 1. The above appeal is filed by appellant against the order of the Commissioner (Appeals) who upheld the order passed by original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant had mistakenly paid the excise duty to the tune of ₹ 2,53,103/- and had raised the invoice including the excise duty. The said excise duty was not collected from BHEL and therefore the same has not been passed on to another. He submitted that the appellant has furnished a Chartered Accountant certificate in support of the contention that after coming to know that excise duty is not payable and also after receiving the letter from BHEL they have adjusted the said amount of ₹ 2,53,103/- and shown the amount as Refund Receivable . The Ld. Counsel submitted that the appellant having not collected the excise duty from the immediate purchaser/BHEL there is no question of the duty being passed on and therefore the rejection of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he adjudicating authority in my view is not proper. The appellant sought refund of excise duty, wrongly paid, by filing a refund claim. Only when the assessee is issued a show cause notice or a deficiency memo will the assessee come to understand the reason proposed for rejection of refund. It is then for the assessee to defend the case by producing necessary evidence. 6. In the instant case, on 28.05.2013 in the ledger account a debit entry was made when goods were cleared to BHEL. The BHEL account was debited with ₹ 23,46,882/- including excise duty of ₹ 2,53,103/-. On coming to understand that duty ought not to have been paid, the appellant passed necessary rectification entries in their books on 31.07.2013, by crediting B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no question of the burden of duty being passed on. The decision relied by the department in the case of M/s Addison and Company Ltd., pertains to the case wherein the refund was sought for the excess duty paid by the assessee on account of discounts given to buyers. In facts of those cases before the Hon ble Apex Court, the assessee was periodically passing on the turnover discount to their dealer by way of credit note issued to them and then filed refund claim for the excise duty element on the discounts. In the case before me, refund is not claimed of the duty element on discount. The appellant paid excise duty wrongly, and the same though included in invoice has not been collected from BHEL. The entry was made debiting the excis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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