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TMI Blog2018 (5) TMI 2047X X X X Extracts X X X X X X X X Extracts X X X X ..... g of assessment pertaining to 2006-07. 2. It is the claim of the Learned Counsel that the refund in consequence of finalization of provisional assessment is to be guided by rule 7(6) of Central Excise Rules, 2002 and seeks support of the decision of the Hon'ble Supreme Court in Mafatlal Industries Ltd v. Union of India [1997 (89) ELT 247 (SC)] which held that '95. Rule 9B provides for provisional assessment in situations specified in Clauses (a), (b) and (c) of sub-rule (1). The goods provisionally assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the goods which are finally assessed. Sub-rule (5) provides that "when the duty leviable on the goods is asssessed finally in accordance with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urden of duties had not been passed on. A number of other decisions have also been relied upon. Drawing attention to the certificate dated 18th September 2018 of Chartered Accountant, it was submitted that the first appellate authority had erred in not giving due weightage to these evidences. It was pointed out that, in an identical issue pertaining to 2002-03, the Tribunal vide order no. A/87232/2017/SMB dated 17th March 2017 for disposing off appeal no. E/872/2010 challenging order-in-appeal no. AKP/NSK/77/2010 dated 19th March 2010 had held that '5. I find that the appellant have made provision in the books of account in respect of this refund amount and shown as receivable in the assets side of the balance sheet. In my view if the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of Commissioner of Central Excise (Appeals), Mumbai -III, had accepted the very same documents for the years 1999-2000 to sanction the refund claim. 4. Learned Authorised Representative places reliance on the decision of the Hon'ble Supreme Court in Commissioner of Central Excise, Madras v. Addison & Co Ltd [2016 (339) ELT 177 (SC)] to the effect that 16. In the instant case, the Assessee has admitted that the incidence of duty was originally passed on to the buyer. There is no material brought on record to show that the buyer to whom the incidence of duty was passed on by the Assessee did not pass it on to any other person. There is a statutory presumption under Section 12B of the Act that the duty has been passed on to the ultima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition. The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal and the Order-in-Appeal are that the excise duty paid originally at the rate of 8.8 per cent was passed on from the Assessee-processor to the owner of the fabric and later to the customers. The point in this Appeal is also identical to that of Civil Appeal No. 7906 of 2002. The above appeal of the Revenue is allowed.' 5. However, Learned Counsel draws attention to '35. The respondent-Assessee is a 100 per cent Export Oriented Unit (EOU) manufacturing cotton yarn. The respondent filed an application for refund of an amount of Rs. 2,00,827/- on 14-8-2002 on the ground that it had paid excess excise duty at the rate of 18.11 per cent instead of 9.20 per cent. The Assessee initially passed on the duty incidence to its customers. Later th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Accountant and the credit notes raised by the Assessee regarding the return of the excess duty paid by the Assessee, there is no dispute in this case of the duty being passed on to any other person by the buyer. As it is clear that the Assessee has borne the burden of duty, it cannot be said that it is not entitled for the refund of the excess duty paid. In view of the facts of this case being different from Civil Appeal No. 7906 of 2002, the appeal preferred by the Revenue is dismissed.' in the very same order of the Hon'ble Supreme Court. 6. Considering the decision of the Hon'ble Supreme Court as well as the submissions pertaining to the disposal of the refund claim for the earlier periods, we set aside the impugned order an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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