TMI Blog2019 (7) TMI 1478X X X X Extracts X X X X X X X X Extracts X X X X ..... AT itself and that remained unchallenged so far. It is not understood when no duty was paid and only credits availed were refunded, how come a case of unjust enrichment could come into play when the said amount has been shown as receivable under the head Loan Advances receivable from the respondent-department for a continuous period of 10 financial year and when the said amount is adjusted against Profit Loss Account under the heading Administrative, Selling and General Expenses . In the instant case appellant had justified absorbing of the said cost in its administrative expenses overhead and therefore, it can be safely concluded that incidence of duty has not been passed on by the appellant to any other person. Hence the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellant for which it was not eligible for the said refund. Commissioner (Appeals) confirmed the same and hence the appeal. 3. In the memo of appeal and during course of hearing of the appeal, learned Counsel for the appellant Ms. Ginita Bodani submitted that the adjudicating authority had clearly observed that amount was shown as receivable for 10 years and in the financial year 2005-06 appellant had charged the same to their Profit Loss Account under schedule 15 i.e. Administrative, Selling and General Expenses and therefore Learned Commissioner (Appeals) observation that the expenses had been factored into the overall cost for which incidence of duty had passed on is admittedly erroneous in view of the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Vs. Commissioner of Central Excise, Gwalior others case laws that Chartered Accountant who certified that the fact of non- collection of the duty from buyers may corroborate other evidence concerning non-collection of the duty from buyers which is admittedly not established by the Appellant for which interference in the order passed by the Commissioner (Appeals) is uncalled for. 5. Heard from both sides and perused the case record. It is a strange case where a refund claim of the appellant made in 1995 could not be settled till date under one pretext or the other. The entire case record does not bring out a case of unjust enrichment as refund was claimed against reversal of CENVAT credit which was ultimately held to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person. Hence the order. ORDER 6. The appeal is allowed and the order passed by the Commissioner of Central Excise Customs (Appeals), Nashik vide Order-in-Appeal No. NSK-EXCUS-000-APP-280-13-14 dated 30.09.2013 refusing refund is hereby set aside. The appellant is entitled to get refund of ₹ 7,37,586/- along-with applicable interest calculated from 3 months after filing of refund application on dated 4th December, 1995 as per explanation appended to Section 11BB of the Central Excise Act and the respondent-department is directed to pay the same to the appellant within 3 months from receipt of the order. (Order pronounced in the open court on 29.07.2019) - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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