TMI Blog2017 (2) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... ex [2008 (11) TMI 89 - RAJASTHAN HIGH COURT ], where it was held that the presumption under Section 12-B is a rebuttable presumption and once the assessee produces evidence in support of his claim of having not passed on the incidence of duty whose refund is claimed to the customers, the burden of proof would shift to the Department to prove that the claim of the assessee is false - rejection of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As requested by learned counsel for appellant, we proceed to hear appeal for admission today itself. 3. This is an appeal filed under Section 35-G of Central Excise Act, 1944 (hereinafter referred to as Act, 1944 ) arising from judgment dated 26.12.2014 passed by Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as Tribunal ) whereby Tribunal has allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed on incidence of duty to any other person, refund cannot be allowed. Court held, it is not a case of refund of duty but return of pre-deposit made by Assessee at the time of investigation under protest. Court has said as under: There are also very many judgments of various Courts, which have also reiterated the same principles that in case any amount is deposited during the pendency of ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 (All.). 6. Against the judgment of Bombay High Court in Suvidhe Ltd. (supra), Revenue preferred an appeal before Supreme Court but High Court's view was maintained. The said judgment is reported in Union of India v. Suvidhe Ltd. - 1997 (94) E.L.T. A159 (S.C.). 7. Referring to above authorities a Division Bench of this Court presided over by one of us (Hon'ble Sudhir Agarwal) has ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the considered view that rejection of refund claim on the ground of doctrine of unjust enrichment is not legal and proper. 9. Learned counsel for appellant could not dispute the aforesaid exposition of law. He also could not show any perversity in the aforesaid findings recorded by Tribunal. 10. Though two substantial questions of law have been formulated by Revenue, but we find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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