TMI Blog2018 (10) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... sfies the requirements of the proviso attached to sub-section (2) of Section 11B of the Act that the incidence of excise duty as per the refund application, has not been passed on by the appellant to any other person and such incidence has all along been borne by it. Therefore, the refund application will not be hit by doctrine of unjust enrichment. Refund allowed - appeal allowed - decided in favor of appellant. - Appeal No. E/432/2012 - A/87434/2018 - Dated:- 6-7-2018 - Mr. S.K. Mohanty, Member (Judicial) Shri R.V. Shetty, Advocate for appellant Shri M.R. Melvin, Supdt. (AR) for respondent ORDER Per: S.K. Mohanty Rejection of refund application of the appellant on the ground of limitation as well as doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the appellant, seeking for confirmation of the duty demand and for imposition of penalty. The show-cause notice dated 30.10.2009 was adjudicated vide order dated 24.12.2010, in dropping the proposals made in the show-cause notice. Since the show cause proceedings initiated by the department for confirmation of the duty demand was dropped, the appellant had filed the refund application, claiming refund of ₹ 31,26,771/- before the jurisdictional Central Excise authorities. The refund application was disposed of vide order dated 13.06.2011, in rejecting the same, on the ground that the refund application is barred by limitation of time and the claim is hit by the doctrine of unjust enrichment. 2.1 With regard to time bar aspect, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund application within two months from the date of such order, such claim application is within time and cannot be rejected on the ground of limitation. 3.1 With regard to applicability of doctrine of unjust enrichment, the learned Advocate submits that the excise duty paid by the appellant during the course of investigation had not been collected from the buyers of the goods and such excess payment had been duly reflected in the balance sheet under the accounting head Loans and Advances , showing the disputed amount receivable from the Central Excise department. He also produced the certificate dated 25.06.2016 of Shri Divyesh V. Doshi of Doshi Thakkar Associates, Chartered Accountants, to demonstrate that the excise duty paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating authority, while adjudicating the show cause notice, had appropriately held vide order dated 24.12.2010 that Central Excise duty cannot be collected from the appellant, who acted in the capacity of dealer of excisable goods. Since pursuant to the favorable adjudication order dated 24.12.2010 passed by the Additional Commissioner of Central Excise, the appellant had filed the refund claim on 25.02.2011, such claim application, in my considered opinion, cannot be rejected on the ground that the same is barred by limitation of time. In other words, the refund application having been filed well within the prescribed time limit provided under the statute, the same is maintainable for consideration of the refund benefit, if otherwise due. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continued and reflected in the balance sheet prepared as on 31.03.2016. Further, the certificate dated 25.06.2016 issued by the C.A. firm M/s Doshi Thakker Associates have also confirmed that in respect of the excise duty paid by the appellant, benefit has not been passed on to any other person. The documents available in the case records satisfies the requirements of the proviso attached to sub-section (2) of Section 11B of the Act that the incidence of excise duty as per the refund application, has not been passed on by the appellant to any other person and such incidence has all along been borne by it. Therefore, the refund application will not be hit by doctrine of unjust enrichment. 7. In view of foregoing discussion and analysis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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