TMI Blog2022 (9) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... rds that the Revenue has not controverted the Certificate of the Chartered Accountant. It is settled law that if the assessee has not received the amount from the buyers, it cannot be held, that the Appellant will be unjustly enriched. The decision of the Tribunal in the case of MHATRE ENGINEERING PVT. LTD. VERSUS COMMISSIONER OF C. EX., BELAPUR [ 2008 (5) TMI 179 - CESTAT MUMBAI] and the judgement of the Hon ble High Court of Madras in the case of COMMR. OF C. EX., PONDICHERRY VERSUS SOUTHERN AGRIFURANE INDUSTRIES LTD. [ 2006 (7) TMI 222 - HIGH COURT OF JUDICATURE AT MADRAS] are very much on the point, where it was held that Revenue has not controverted the certificate of the purchaser and certificate of the Chartered Accountant. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for refund of excise duty on 24.04.2013 supported by documentary evidences inclosing the copies of the original invoices, supplementary invoices, payment proofs, Cenvat Credit Register and Certificate issued by Deputy Chief Material Manager, Rail Wheel Factory stating that Rail Wheel Factory did not avail Modvat benefits for purchase of blooms. The range Superintendent on verification of Form-ER-1 Returns confirmed that the Appellant had paid the excise duty twice on sales made to Rail Wheel Factory, however, the benefit of refund of such erroneously paid Central Excise duty is being denied on the presumption that the incidence of duty has been passed on by the Appellant to the buyer (Rail Wheel Factory) in terms of Section 12B of Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge the burden of proving contrary to the statutory presumption as envisaged under Section 12B of the Central Excise Act, 1944; ii. the refund claim amounting to Rs.5,04,393/-, is refundable and the same should be credited to Consumer Welfare Fund in terms of Sub-Section (2) of Sec 11B of the Central Excise Act, 1944 for failure of compliance of the provisions of Section 12B of the Central Excise Act, 1944 by the said assessee; iii. the duty has been paid on both Original and Supplementary Invoices. Accordingly, I pass the following order:- E. ORDER I reject the Refund claim of excise duty including education cess amounting to Rs.5,04,393/- (Five Lakhs Four Thousands Three Hundreds and Ninty Three) Only to M/s. Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by the Appellant to buyer under the head invoice value already raised . In other words, amounts pertaining to original invoice was not required to be re-paid by the customers. It is the case of the Appellant that the refund claim is not hit by bar of unjust enrichment as the excess Central Excise duty paid by mistake by the Appellant continues to be borne by the Appellant and has not been passed on to the buyer. It is the submission of the Appellant that once there is no case of unjust enrichment the refund claim ought to be allowed to the Appellant. In support of his submissions, he relied upon the decision of the Tribunal in the case of Mhatre Engineering Pvt.Ltd. Vs. Commissioner of C.Ex., Belapur [2008 (230) E.L.T. 459 (Tri.- Mumba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce No. 5381 Supp. Invoice 5381/04 Assessable Value 2411274 2411274 0 Excise Duty 241127 289353 48225 Edu Cess 4823 5787 965 S H Edu Cess 2411 2894 482 CST 106385 108372 1987 TOTAL 2766020 2817679 51659 8. The contentions of the Appellant that they have not receive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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