TMI Blog2017 (8) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... buyers including the duty element, unjust enrichment is attracted. It is not the case of the appellant that excise duty does not for part of the value of clearances from depot. In the present case, there is no provisional assessment but final duty payment. Appeal dismissed - decided against appellant. - Appeal No. E/2929-2930/2009 - Final Order No. 61460-61461/2017 - Dated:- 2-8-2017 - Mr. Devender Singh, Member ( Technical ) For the Appellant : Shri Amarinder Singh, Advocate For the Respondent : Shri Atul handa, AR ORDER Per : Devender Singh These two appeals pertain to the refund claims of ₹ 7,01,241/- and ₹ 6,11,387/-. 2. The brief facts of the case are that the appellant is engaged in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not examined by learned Commissioner (Appeals) on the basis of Chartered Accountant s certificate to serve interest of justice. It would therefore, be proper to remit the matter back to the learned Commissioner (Appeals) who shall re-examine the corroborative evidence which has given rise to the Chartered Accountant s certificates to satisfy himself that claim made by the appellants was not to unjustly enrich itself. In view of the learned Commissioner (Appeal) s conclusion that the evidence is only required to be examined is to test the unjust enrichment, we require the litigation to reduce to this narrow compass only. 3. Pursuant to the same, the Commissioner (Appeals) has passed the impugned order dated 31.8.2009 allowing the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am-II vs. Andhra Pradesh Paper Mills Limited-2010 (259) ELT 513 (AP). 6. Learned AR for the Revenue reiterated the findings in the impugned order of the Commissioner (Appeals). He invited attention to the invoices. 7. Heard the parties and examined the records. 8. I find that the ld. Commissioner (Appeals) has gone into the question of unjust enrichment in compliance with the order of this Tribunal dated 14.1.2009. The question of following Rule 7 is inextricably linked with the question of determining the value of clearance from the depot and the question of whether the appellant have realized excess duty which they have kept with themselves without passing it further to the consumers. In fact, the data submitted by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been passed on to the ultimate buyer. In the instant case, the Respondents have only been able to prove that they have paid more duty than the duty they ought to have paid in terms of Rule 7 of Central Excise Valuation Rules ,2000. They have not been able to establish that the duty paid by them for which refund has been sought, has not been recovered from their buyers. The doctrine of unjust enrichment will not apply only when the duty paid to the department in respect of the factory gate clearances is higher than the duty which has been recovered from their customers in respect of the sale from the depots which the assessee has not been able to establish in respect of impugned goods. The same principle has been laid down in case of WE ..... X X X X Extracts X X X X X X X X Extracts X X X X
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