TMI Blog2017 (3) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... fund of the appellant is not hit by the doctrine of unjust enrichment - prior to the period 25/09/1999 when N/N. 43/1999-CE was issued bringing the doctrine of unjust enrichment applicable to the refund arising out of provisional assessment; is not applicable retrospectively - refund allowed - appeal allowed - decided in favor of appellant-assessee. - E/1976/2009-EX[SM] - A/70212/2017-SM[BR] - Dated:- 22-2-2017 - Mr. Anil Choudhary, Member (Judicial) Shri Deepak Suneja, Advocate, for Appellant Shri Pawan Kumar Singh, Superintendent (AR) for Respondent Per: Anil Choudhary The present appeal is filed by the appellant, M/s Heinz India Private Limited, against Order-in-Appeal No. 28CE/LKO/2009 dated 24/02/2009 passed by C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was allowed but the amount was credited to Consumer Welfare Fund holding that the appellant does not satisfy the requirement of unjust enrichment. The second claim of ₹ 2,02,386/- was also allowed vide Order-in-Original dated 14/09/2001 and the same was also credited to Consumer Welfare Fund. Vide common Order-in-Appeal No. 321 322-CE/2005 dated 14/06/2005 the Id. Commissioner (Appeals) remanded the matter back to the Adjudicating Authority for examining the issue of unjust enrichment, in the second round vide Order-in-Original dated 18/03/2008, the Assistant Commissioner have been pleased to reject the refund, observing that it is evident that neither affidavit nor its Chartered Accountant's certificate is supported with docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im, that an enterprise is pursuing through legal process, where the outcome is uncertain. Further, accounting standard provides that contingent gain should not be recognized in the financial statements. On the other hand accounting a standards-4 provides that the existence of a contingent loss should be disclosed in the financial statements. The Id. Counsel for the appellant have also demonstrated their pricing pattern which had also been explained to the courts below wherein it is stated that they removed the goods from the factory to their C F agent, which is in the nature of stock transfer and there is no sale involved and as such there is no question of passing on any duty to a third party. Further, they explained that the goods are d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss: Trade Discount 5.5% 0.47 Price Inclusive of Excise duty (Inclusive ₹ 1.09 for Excise duty) 8.03 Excise duty payable will be Rs.8.03 - 0.13 p. for equalized freight (1.60% of ₹ 8.03) = 7.90 x 16/116 = 1.09 against ₹ 1.16 paid at factory gate, thus duty excess paid 0.07 p. per unit which is borne by appellant and incidence of same has not been passed on to wholesaler or any other person. With this illustration the Id. counsel explained that it is evident that the appellant have paid more duty, but have passed on less to the buyers of the goods and the same have been admitted by the Revenue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Id. Counsel for Revenue supports the impugned order. He, further, draws my attention to the findings of the ld. Commissioner (Appeals) wherein it has been held that as the refund amount have not been reflected as receivable from the Government, the refund is rightly rejected. 7. Having considered the rival contentions, I find that it is admitted fact that the appellant have paid excess duty. It is further admitted fact that the appellant have charged the duty excess paid to the profits in the relevant accounting year. I, further, find that the impugned order suffers from mistake of fact as the courts below have considered the first transfer from the factory to the Depot by way of sale which is a mistake apparent on the record. l, fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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