Refund of accumulated deemed credit requires consideration of circumstantial evidence when direct proof of non-availment is unavailable.

Refund of accumulated deemed credit was examined in the context of changes in the excise regime and later duty exemption, which had rendered the credit unusable. The earlier appellate order in the claimant's favour had already attained finality and had to be acted upon. While refund entitlement remained for the claimant to establish, direct proof of non-availment of drawback or rebate was not required where such proof was unavailable due to lapse of time. The authority was required to assess circumstantial evidence, including certificates, balance sheets and affidavits, and, because that material had not been properly considered, the matter was remanded for verification and a speaking order after further hearing.

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Issues: Whether the appellant was entitled to refund of accumulated deemed credit and whether the matter required remand for verification of the evidence relating to non-availment of drawback or rebate.

Analysis: The accumulated credit had become unusable because of changes in the excise regime and later exemption from duty. The earlier appellate order had already gone in the appellant's favour and had not been challenged, so it had to be given effect to. At the same time, refund entitlement had to be established by the claimant, though the claimant could not be expected to prove a negative by producing direct proof that no drawback was taken. In the absence of old original export records, circumstantial evidence such as certificates, balance sheets and affidavits also had to be examined, and the authorities below had not properly dealt with those materials.

Conclusion: The refund claim was not finally decided on merits and the matter was remanded to the original authority to verify the existing and additional evidence and pass a speaking order, after giving the appellant an opportunity to produce further material and be heard.

Ratio Decidendi: Where direct proof of non-availment of drawback is unavailable because of lapse of time, the claimant may rely on circumstantial evidence and the authority must consider it before deciding refund entitlement.

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