TMI Blog2018 (12) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciple is that the burden of proof that the duty incidence has not been passed on to the customer rests upon the claimant. The respondent herein has adequately discharged this duty and the documents submitted by them have been examined in detail by the first appellate authority while allowing their appeal - What is being claimed is just the duty paid by them on their final product which has not been passed on to their customers. Therefore, the question of indirectly passing on the incidence of duty to the customers does not arise. Refund is to be allowed - appeal dismissed - decided against Revenue. - Appeal No. E/2287/2010 - A/31374/2018 - Dated:- 17-10-2018 - Mr. M.V. Ravindran, Member (Judicial) And Mr. P. Venkata Subba Rao, Memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etails, sales tax returns and other correspondence and fount that the claim is admissible on merits. He also found that the claim is not hit by the clause of unjust enrichment as the respondent herein has not passed on the burden of excise duty on to their customers. 3. The present appeal by the revenue against this impugned order is on two grounds, viz., merits and unjust enrichment. They have not disputed that the claim was made within the time limit. As far as the merits are concerned, it is the contention of the revenue that the respondent had not claimed the benefit of this exemption notification at the time of removal of goods from their factory gate but claimed at the time of sale from their depot at Ahmedabad to their customers. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the factory gate. On the question of unjust enrichment he submits that the first appellate authority has examined the documents submitted by them in detail and came to a conclusion that they have not passed on the burden of the duty to their customers and therefore he has rightly allowed their appeal. 5. We have considered the arguments on both sides and perused the records. The only two points on which the revenue is in appeal is that exemption is not available to the respondent because they had not claimed it before clearing the goods from the factory gate. Subsequent to the clearance of goods from the factory gate, if they are used for the water supply scheme, that will not entitle them to the benefit of the exemption notification. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess or processes intended to make the water fit for agricultural or industrial use. 6. There is nothing in the notification which requires assessee to claim the benefit of this notification prior to the removal of goods from the factory and therefore, first appellate authority correctly sanctioned refund on merits. As far as the question of unjust enrichment is concerned, the established legal principle is that the burden of proof that the duty incidence has not been passed on to the customer rests upon the claimant. The respondent herein has adequately discharged this duty and the documents submitted by them have been examined in detail by the first appellate authority while allowing their appeal. It is also an established princip ..... X X X X Extracts X X X X X X X X Extracts X X X X
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