TMI Blog2017 (10) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... st enrichment and verified balance sheet for the purpose of unjust enrichment and thereafter concluded that the amount of refund has been shown as receivable in the balance sheet and on that basis it was held that appellant have not been unjustly enriched - refund allowed - appeal allowed - decided in favor of appellant. - E/632/11 - A/89841/17/SMB - Dated:- 18-8-2017 - Mr Ramesh Nair, Member (Judicial) Ms. Anjali Hirawat, Advocate for the Appellants Shri. Melvin Superintendet for the Respondent ORDER The fact of the case is that appellant were paying duty under provisional assessment. On the final assessment, it was found that there was some short payment and excess payment of excise duty. As regard the short payment they have discharged the differential duty of ₹ 65,05,039/- with interest amounting to ₹ 6,95,312/-. In respect of clearances on which they had paid excess duty, they filed refund claim of ₹ 40,33,777/- which was later revised to ₹ 26,23,859/-. The adjudicating authority held that part of the claim amounting to ₹ 9,53,621/- was time barred, howeer he sanctioned the refund of remaining amount of ₹ 16,70,238/- B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pkatos Brett Co. Ltd Vs. CCE[2016-TIOL-138-MUM] As regard the issue of additional evidence she placed reliance on the judgment of Hon ble Supreme Court in case of TOYOTA KIRLOSKAR MOTOR PVT. LTD. Versus COMMISSIONER OF CENTRAL EXCISE[2011 (274) E.L.T. 321 (S.C.)] . She also relied upon the following judgments: (a) Elantas Beck India Ltd Vs. CCE ST[2016(339) ELT 325(Tri. Mumbai) (b) Salve Pharmaceuticals Pvt Ltd Vs. CCE[2016(339)ELT 297(Tri. Del)] (c) Savita Oil Technologies Ltd Vs. CCE[2017-TIOL-CESTAT-MUM] 3. On the other hand, Shri. M.R. Melvin, Ld. Superintendent (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He made following submissions: (a) Provisional assessment for FY 2006-07 was finalised on 14.11.2007. The obvious fact that ensues would be that the costing data was available with the assessee on that date and hence they were in the knowledge of the amount receivable as refund on or after that day. However, the figures of receivables in the Balance Sheet for the year 2007-08 are based on approximation when they probably would have been finalised a few months after the end of FY 2007-08. The i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee had initially included an amount of ₹ 9,53,621/- in their refund claim, in respect of five invoices which were on examination found to be time barred. In the circumstances, the CA certificate by itself cannot be regarded as foolproof evidence of the incidence of duty not having been passed on. As such the requirement of the statute is that the incidence of duty should not have been passed on and the CA certificate could at best be a supporting evidence when seen alongwith other evidences to substantiate such fact. Such pliable evidence produced by the assessee should be discarded without being given credence. As such the assessee has not been able to negate the presumption of duty having been passed on to the buyer under Section 12B of the CEA, 1944 and therefore the refund claim filed by them has rightly been rejected by the Commissioner(Appeals) as hit by unjust enrichment. 4. I have carefully considered the submissions made by both sides and perused the record. 5. I find that Ld. Commissioner(Appeals) allowed the Revenue's appeal setting aside the sanctioned refund order passed by the adjudicating authority stating that amount of refund claim shown in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount] pertaining to Patalganga unit for the period of 01.04.07 to 31.03.08; which showed at its page no. 1[against the posting date 30.9.07 with the document no.JVNVSEP07-PTG-000038] an amount of ₹ 35,55,102.50. The claimants stated this amount to be corresponding to the amount claimed as the subject refund. On examination, this particular entry was found to bear a clear narration with it which read as PROVISIONAL ASSESSMENT REFUND ON API FOR 2006-07 OF PTG . Here the acronym 'API' reportedly stands for 'Active pharmaceutical ingredients' and `PTG' stands for `Patalganga'. When asked about the mis-match of the refund amount in question and this corresponding entry of 35.55 lakh in the ledger account, it was clarified by the claimants under their letter dated 11.12.09 that it is because of the reason that while posting such entries the exact amount of excess payment and in turn the refund claim is not under their knowledge, and hence they make the entries on approximation taking around 25% of the total duty liability in respect of entire clearances made to such sister units-(the unit at Badi, Himachal Pradesh in this case). In support of this, they p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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