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TMI Blog2023 (1) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... credit+ Rs.3,16,024/- towards interest + Rs.1,46,861/- towards penalty], which admittedly was paid by the appellant during investigation towards reversal of Cenvat credit, interest and penalty somewhere in the year 2010. Out of this amount, Rs.2,17,946/- (inclusive of interest & penalty) was rejected on account of beyond limitation, however refund was sanctioned to the extent of Rs.8,32,383/- but was transferred to the a/c of 'Consumer Welfare Funds' on the ground of principles of unjust enrichment for non-production of evidence in order to establish that the incidence of duty has not been passed on to the buyers or otherwise. 3. The facts leading to the filing of the appeal are stated as follows. In the year 2007 Preventive Staff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the 1st Appellate Authority and the said Authority vide Order-in-Appeal dated 31.8.2018 allowed the refund claim for the balance amount of Rs.4,65,546/-. Thereafter the appellant on 25.2.2019 filed another application for refund with the concerned authority mentioning therein total refund claim of Rs.10,50,239/-. 5. A show cause notice dated 5.4.2019 was issued to the appellant as to why the refund claim to the extent of Rs.2,17,946/- out of total claim of Rs.10,50,239/-should not be rejected as the claim has been filed beyond the prescribed period, which got adjudicated vide Order-in-Original dated 14.5.2019 by which the Adjudicating Authority rejected the refund claim to the extent of Rs.2,17,946/- on the ground of limitation u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund claim. In the said refund application it has specifically been mentioned in Ground (vi)(b) that they had already filed the refund application regarding dropping demand of Rs.1,21,898/- plus interest and penalty as well as appeal before the Commissioner (Appeals) against the confirmation of the demand for the balance amount. Not only that, in the prayer of the said Form-R refund application a specific submission has been made that 'earlier consequential refund application is still pending with the department'. In my opinion, had the authorities gone through the Form-R application properly rather than merely reading the covering letter only, they would have come across the proper facts. The rejection of the speed post on the ground of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question of passing on burden of amounts deposited during investigation does not arise. According to learned counsel the amounts in question were deposited in the year 2010 during the course of investigation and there was neither sale of capital goods manufactured in situ nor any duty was leviable on the capital goods so manufactured in situ and hence the question of passing of burden to anyone can't arise. I have gone through the show cause notice dated 5.4.2019 and find that the said notice is confined to the rejection of the amount of Rs.2,17,946/- only and there was no whisper about the balance amount of Rs.8,32,383/-, not even a passing reference. For the first time it was raised during adjudication proceedings by way of letter date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant is entitled for refund of duty and interest on this ground also. Now so far as the issue of unjust enrichment is concerned there is certificate of the Chartered Accountant as well as the affidavit of the appellant specifically mentioning therein that the burden towards Cenvat credit, interest and penalty was never passed on to the consumers. The Chartered accountant has issued the certificate on the basis of books of accounts and the other related relevant documents produced before them. Merely because the certificate is not as per the liking of the authorities below, it cannot be brushed aside as no specific format of certificate has been prescribed by the statute. If the department proves anything contrary to the statement me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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