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2016 (12) TMI 1514 - CESTAT HYDERABAD

2016 (12) TMI 1514 - CESTAT HYDERABAD - TMI - Refund claim - excise duty paid wrongly - unjust enrichment - Held that: - Under Section 12B of Central Excise Act, 1944 when the invoice is raised including the excise duty a presumption is raised that the incidence of duty is passed on. But this presumption is a rebuttable one. When the invoice was mistakenly raised including the duty and when excise duty was not collected, there is no question of the burden of duty being passed on. - The appel .....

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- 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 authority rejecting the refund claim. 2. The appellants filed refund claim for ₹ 2,53,103/- being excise duty wrongly paid by the .....

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7.2013 issued by BHEL that they are not paying the excise duty of ₹ 2,53,103/- wrongly charged on them, the appellants made corresponding credit entry in their accounts on 31.07.2013. Thus, it is the case of appellant, that they did not collect the excise duty from BHEL, though raised in the invoice and entered in their account. There upon, the appellant filed a refund claim for refund of the excise duty mistakenly paid by them. The refund sanctioning authority sanctioned the refund of  .....

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cise 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 th .....

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p; Company Ltd., reported in [2016 (339) ELT 177 (S.C.)] 5. I have heard both sides. The issue for consideration is whether the refund claim is hit by doctrine of unjust enrichment. In para 3 of the Order-in-Original the adjudicating authority has discussed that the amount of excise duty of ₹ 2,53,103/- which is the subject matter of refund claim was debited in the account on 28.05.2013 as sales excise duty and shown as expenditure. Later when the mistake was noticed, the same was shown as .....

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ered Accountant Certificate dated 13.08.2013. That therefore these are only after thoughts. This view of the 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 .....

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pellant has furnished the Ledger account extract of M/s BHEL, Haridwar account for the period 01.04.2013 to 31.12.2013 reflecting the entries made on 28.05.2013 and 31.07.2013. 7. BHEL has issued a letter dated 24.06.2013 which was received by the appellant on 05.07.2013. In this letter it is seen stated that BHEL has not paid an amount of ₹ 2,53,103/- which was raised in the invoice as excise duty. It is pertinent to mention that the debit entry was made on 28.05.2013 for collection of ex .....

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