TMI Blog2023 (12) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... st enrichment but to his satisfaction he call for and examine documents to arrive at a finding that such incident of duty was not passed on to any other person. Therefore, the general perception that burden of proof is on the assesse to establish that incidence of duty was not passed on to any other person is true to the extent that and in the case where allegation is made concerning passing of such duty incidence to any other persons, then only he would be in a position to falsify the same through related documents. For example, when a person is accused of committing murder of another person Named B then at least B should have been dead so as to allege A of culpable homicide. Therefore, the finding of the Refund Sanctioning Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... richment by the Adjudicating Authority that finds approval of the Commissioner (Appeals) by way of rejection of the appeal of assesse Appellant is assailed in this appeal. 2. Facts of the case, in a nutshell, is that Appellant manufacturers unit was raided by DGCI in which they discovered availment of inadmissible CENVAT Credit. It had resulted in deposit of Rs.18,22,495/- in two phases during investigation and payment of 25% of penalty consequent upon adjudication of the Show-cause cum Demand Notice issued in consequence to the investigation. Appellant preferred appeal before the Commissioner (Appeals) who vide his Order-in-Appeal dated 25.01.2017 set aside the demand, interest and penalty and modified the Order-in-Original accordingly. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, Pune- Reported in 2019 (368) ELT 84 (Tri. Mumbai), Hindustan Petroleum Corporation Ltd. Vs. Commissioner of Central Excise, Mumbai-II Reported in 2015 (317) ELT 379 (Tri. Mumbai), Tetra Pak India Pvt. Ltd. Vs. Commissioner of Customs, Nhava Sheva, Mumbai-II Reported in 2019 (370) ELT 449 (Tri. Mumbai) and other cases argued that amount shown in Profit Loss account as expenditure and not as receivable amount takes with it the presumption that incident of duty has been passed on to other person in which case doctrine of unjust enrichment would apply, even contrary of the findings of this Tribunal in the case of M/s Elantas Beck India Ltd. Vs. Commissioner of Central Excise And Service Tax, LTU Reported in 2016 (339) ELT 325 (Tri. Mumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating Authorities have blindly refused to credit the refund amount to the assesse s account, if the amount was not shown as recoverable in the Balance Sheet or in the Profit/Loss Account. After going through the Study Papers on unjust enrichment released by the Institute of Chartered Accountants of India vis- -vis Compendium on Accounting Standard of Institute of Chartered Accountant of India released in 2017, it is manifestly clear as to under what circumstances any amount is to be shown in the Financial Statement of any Company as receivable or expenses . To begin with, the Accounting Standard prescribed by the Institute, which is a Government of India concern set up by an Act of Parliament, amount receivable in future is norm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng finality by rejection of appeal of Department by the CESTAT on 29.12.2017, it had brought back the said amount by reversing the entry and shown the same as refund receivable that was written off as expenses in 2014-15. Therefore, entry in relation with account book was flawless though it is no way offering any justification that the doctrine in unjust enrichment is established/not established thereby. The contention of Learned Counsel for the Appellant is well accepted for the reason that maintenance of Accounts Statement, as per the Accounting Standard prescribed by the Institute Chartered Accountant and proof of recovery of duty paid by the Appellant are altogether different from each other. In this connection, I would be tempted to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incidence of such duty and interest, if any, paid on such duty to any other person; (e) The duty of excise and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; 7. This Provision has not stated anywhere that any document is required to be produced before the Assistant Commissioner or Deputy Commissioner of the Central Excise to pass the burden of unjust enrichment but to his satisfaction he call for and examine documents to arrive at a finding that such incident of duty was not passed on to any other person. Therefore, the general perception that burden of proof is on the assesse to establish that incidence of duty was ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
