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TMI Blog2005 (1) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... m Customer, it should not have been indicated in the invoices. Also, in the event the manufacturer wished to pay duty under protest they should have debited the differential duty through Modvat/PLA accounts, in relation to removal of such goods at their end instead of showing the full incidence of duty in the invoices or supplementary invoices to that effect should not have been issued. (ii) It may be seen that at the material time, the details of invoicewise entry for payment by customer to manufacturer are indicative of the fact that out of invoice price only duty element is not paid to manufacturer which appears suspect. The party's claim that enhanced duty liability was refused to be paid by it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter alia found as under - ........... "In the appellant's case though the invoices represented the duty amount, the differential duty was borne by the manufacturer and the same has been established by valid evidences comprising of Chartered Accountant's certificate and Balance sheet of the appellant and their customer M/s. Heinz India Ltd. The adjudicating authority has further failed to note that the customers M/s. Heinz India Ltd. has refused to pay the differential duty pending resolution of the issue before the Delhi High Court as per letter dated 20-3-1998, Thus the appellant's plea is tenable............ " ......"The adjudicating authority's finding as regards to the different certificates produced by the appellant, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of duty has been passed on by the appellant to the buyer M/s. Heinz India Pvt. Ltd is a vital point..... .." ............."The document like the Chartered Accountants Certificate and the balance sheet should necessarily be considered to distinguish the transaction of the appellant with the customer M/s. Heinz India Pvt. Ltd. and vice versa " "In the light of the fact that the incidence of duty has not been passed on to the buyer M/s. Heinz India Ltd., there is no question of grant of refund either to the buyer i.e. M/s. Heinz India Ltd. or the ultimate consumer who has not even applied for refund or transfer of the amount of refund to the Consumer Welfare Fund. The refund has been sanctioned and transferred to Consumer Welfare Fund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ..The same view has been followed by the Hon'ble Supreme Court in the case of M/s Hindustan Metal Processing Works v. CCE, Pune 2003 (153) E.L.T. 11 (S.C.). Since the Hon'ble S.C. has already ruled that principle of unjust enrichment will not be applicable where the duty has been paid under protest by the manufacturer, the appellant deserve their legitimate right of refund and which should be given to them. Therefore, the order of the adjudicating authority transferring the refund amount to the Consumer Welfare Fund is not correct " ".............It is further seen that the adjudicating authority has not accepted the chartered accountant certificate of the appellant certifying that the incidence of duty has not been passed on by them ..... X X X X Extracts X X X X X X X X Extracts X X X X
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