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TMI Blog2008 (5) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has paid excess duty. The appellant filed refund claim on all the invoices raised by them for excess duty paid by them. Both the authorities, while deciding the case have held that the appellant has not crossed the hurdle of unjust enrichment and they have not produced record that they have not recovered duty from their buyers. 2. The learned Counsel appearing on behalf of the appellant draws my attention to the various correspondences made with their purchasers as regards the excess amount of excise duty paid by them. She specifically draws my attention to the letter dated 18-9-2006 vide which the purchaser has categorically informed that they have not availed Cenvat credit and recalculated the amount of credit taken by them. She also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices dated 1-7-2006, were debited/paid by the appellant. The contentions of the appellant that they have not received the amount from their purchasers and that the purchaser has not availed Cenvat credit needs consideration. I find from the records that the purchaser, M/s. Larsen & Toubro Ltd. vide the letter dated 15-9-2006 has communicated as under :- "This has reference to your invoice numbers LK0274, LK0275, LK0276, LK0277 & LK0285 all dated 1-7-2006 supplying us HF Fuses of different types. It is observed that you have paid excess excise duty amount to Rs. 1,20,168.00 in Basic Excise Duty and Rs. 2403/- in Education Cess. This is to certify that we have claimed total Cenvat of Rs. 31,104/- in Basic and Rs. 622/- in Education Ces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45 from M/s. Larsen & Toubro Ltd. as per their books of accounts checked and verified by us. This certificate is issued by us, on specific request by M/s. Mhatre Engineering Pvt. Ltd. to be submitted to the Commissioner (Appeals), Central Excise, Mumbai." 5. I find from the records that the Revenue has not controverted the above said certificate of the purchaser and certificate of the Chartered Accountant. It is settled law that if the assessee has not received the amount from the suppliers, it cannot be held, that the appellant will be unjustly enriched. I find that the decision and order of the Tribunal in the case of Peacock Industries Ltd. (supra), Alstom Ltd. (supra) and the judgment of the Hon'ble High Court of Madras in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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