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M/s Vikas Testing & Development Laboratory Versus CCE, Mumbai-II

2017 (10) TMI 266 - CESTAT MUMBAI

Refund claim - unjust enrichment - duty was paid under protest - the appellants have returned the money to the customer through cheques - Held that: - the ruling relied upon by the learned Commissioner (Appeals) of the Apex Court in case of Grasim Industries Ltd. [2011 (8) TMI 689 - SUPREME COURT OF INDIA] is not applicable in the facts of the present case, as in Grasim case, the duty had not been paid under protest, as in this case. Secondly refund was claimed on 28th November, 1990 and subsequ .....

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s unjust enrichment is cryptic and nonspeaking, without there being an enquiry made by him - Order-in-Original restored. - E/87353/13 - A/89641/17/SMB - Dated:- 22-8-2017 - Shri Anil Choudhary, Member (Judicial) Shri H.G. Dharmadhikari, Advocate For Appellant Shri M.R. Melvin, Superintendent (AR) For Respondent ORDER Per: Anil Choudhary The issue involved in the present appeal is, regarding setting aside the order of the adjudicating authority, thus denying the refund on the grounds of unjust en .....

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ection 4 of CEA, 1944 has been decided by the Commissioner (Appeals) by Order-In-Appeal dated 17.10.2011. Subject Refund claim is arising out of this O-In- A. As per Departmental instructions in this regard i.e. Para 5.3 of Chapter 9 of CBEC's 'Central Excise Manual, "However, no refund / rebate claim should be withheld on the ground that an appeal has been filed against the order giving the relief, unless stay order has been obtained." In subject case, it is ascertained that t .....

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nge Superintendent has confirmed that the Assessee has paid the differential duty for which subject refund claim is filed and the said payment has been made 'Under Protest'. The relevant date for filing subject Refund claim is the date of issuance of O-In-A i.e. 17.10.2011, as per provisions of Section l1B(5)(ec) of the said Act and accordingly, subject refund claim has been filed within the prescribed time of one year, i.e. on 25.07.2012. In view of above findings subject refund is requ .....

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. Mark Enterprises, M/s Mark India Cosmed Pvt. Ltd. and M/s Mark (India) Pharma, the Assessee had assured to return the said excess amount of duty in the event of settlement of dispute in their favour. The fact remained, however, that at the relevant time of filing refund claim, the amount of duty in relation to which the Assessee had filed subject refund claim, has not been borne by them and the burden of duty has been passed on to their buyers. Mere assurance that on receipt of refund claim th .....

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hment' is nullified. 19. 1, therefore, conclude that the Assessee is eligible for refund of ₹ 3,23,195/- as per the provisions of sub-section (d) of proviso to Section 11B(2) of Central Excise Act, 1944. 4.. Being aggrieved Revenue preferred appeal before the learned Commissioner (Appeals) who vide the impugned Order-in-Appeal was pleased to reject the refund by relying on the ruling of the Apex Court in the case of Grasim Industries Ltd. Versus CCE Commissioner of Central Excise, Bhop .....

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fice on 11.10.2010. Thus the refund claim for the period July, 2010 to 11.10.2010 was time-barred. (ii) Further, any refund can be sanctioned and paid to the claimant under Section 11B of the Act only if he has not passed on the incidence of duty to any other person. The respondents had admittedly passed on the incidence of the duty paid by them including the disputed duty, which is subject matter of the refund, to their customers in the invoices issued by them under Rule 11 of Central Excise Ru .....

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uty to the customers vide cheques dated 01.10.2012. (iii) Appellant have submitted that they have returned money to their customer through cheques, however, the same cannot be correlated and these cheques could be for anything and raises doubt as noted by Apex Court in the decision of Grasim Industries Ltd. stated supra. Respectfully following the above judgments, the impugned order has to be set aside. 5. The learned Counsel for the appellant urges that when the amount of refund of the differen .....

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ppeals) is erroneous without any enquiry into the matter. The learned Assistant Commissioner have given categorical findings in the Order-in-Original granting refund, relying on the report of the Superintendent as noticed herein above. Further the amount refunded matches with the amount in dispute and the same having been settled in favour of the appellant vide Order-in-Appeal dated 17/10/2011. The learned Counsel further states that the appeal filed by the Revenue against the said Order-in-Appe .....

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angalore-I Vs. Om Pharmaceuticals Ltd. - 2011 (268) ELT 79 (Kar.) wherein under the facts, the duty collected was repaid in terms of the understanding between the assessee and the buyer, it was held that assessee have not passed on the duty liability to the customers. Though initially he had passed on the liability, he has returned the said duty collected from the buyer. Assessee is entitled to get back the duty, which he has paid, which in law, he was not liable to pay as held by the original a .....

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hat they were not liable to pay the said tax in terms of trade notice, they filed refund claims under Section 11B of the Act. The service tax collected was returned to clients by credit notes and cheques. It was held that in service tax matters, it is very easy to identify service provider and client and also to decide as to who have borne the tax incidence. It was held that appellant-assessee was entitled to refund, having borne service tax burden, unjust enrichment does not arise, when service .....

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