TMI Blog2018 (5) TMI 2047X X X X Extracts X X X X X X X X Extracts X X X X ..... cations made under the statute and filed before the Amendment of the Act and still pending on the date of commencement of Amendment Act, 1991 and (2) applications contemplated under law to obtain refund and filed after the commencement of the Amendment Act, 1991. It was also informed that order-in-original no. 17/20-18 dated 31st May 2017, arising from remand order no. A/86084/17/SMB dated 13th February 2017 in disposing off appeal no. E/1328/2009 challenging order-in-appeal no. YDB/75/M-III/2009 dated 17th September 2009 of Commissioner of Central Excise (Appeals), Mumbai -III, had accepted the very same documents for the years 1999-2000 to sanction the refund claim. Considering the decision of the Hon'ble Supreme Court as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich are finally assessed. Sub-rule (5) provides that when the duty leviable on the goods is asssessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be . Any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be. However, if the final orders passed under sub-rule (5) are appealed against - or questioned in a writ petition or suit, as the case may be, assuming that such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 amount of refund shown as receivable in the assets column that itself shows that this amount which was not recovered from any person and which is shown in the books of account, it is not the prerogative of the asseessee to make any provision on their own in the books of account, every entry in the books of account based on some transaction, therefore excess duty paid once shown as receivable, it cannot be said that the same was recovered from any other person. If an amount is recovered the same cannot be permitted to show in the books of account as receivable. However, both the lower authorities have not given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 ultimate consumer. It is clear from the facts of the instant case that the duty which was originally paid by the Assessee was passed on. The refund claimed by the Assessee is for an amount which is part of the excise duty paid earlier and passed on. The Assessee who did not bear the burden of the duty, though entitled to claim deduction, is not entitled for a refund as he would be unjustly enriched. It will be useful to refer to the relevant para of Mafatlal Industries v. Union of India (supra) in this connection. 108. (iii) A claim for refund, whether made under the provisions of the Act as con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched . xxxxxx 21. That a consumer can make an application for refund is clear from paras 98 and 99 of the judgment of this Court in Mafatlal Industries (supra). We are bound by the said findings of a Larger Bench of this Court. The word buyer in Clause (e) to proviso to Section 11B(2) of the Act cannot be restricted to the first buyer from the manufacturer. Another submission which remains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 the Assessee returned the excess duty amount to its buyers which was evidenced by a certificate issued by the Chartered Accountant on 2-8-2002. The refund claim was rejected by the Deputy Commissioner of Central Excise, Kolhapur Division vide an order dated 24-9-2002 on the ground that the Assessee did not submit either the credit notes or the Chartered Accountant s certificate at the time of filing the refund application. Not satisfied with the genuineness of the documents the Deputy Commissioner rejected the refund claim. The Commissioner (Appeals), Central Excise, Pune a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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