2010 (2) TMI 553

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.... the appellant has not produced any reliable material on record to show that duty paid by it in respect of the galleries had not been passed on to the buyers of the goods and consequently the appellant was not entitled to any refund. 2. Briefly the facts of the case are that the appellants are engaged in processing man-made fabrics with the aid of power, steel and hot air stenters. They were paying duty on actual capacity as determined by the Commissioner, Central Excise. The duty was paid on the basis of size of the chamber. The Revenue was of the opinion that the appellant is also liable to pay duty on the galleries which were a pollution control equipment. The duty was paid on the basis of size of the chamber and as such the size of t....

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....the doctrine of unjust enrichment and issued directions to credit the amount of duty paid by the appellant to the Consumer Welfare Fund. 6. Aggrieved by the aforementioned order, the appellant filed an appeal before the Tribunal, which has dismissed the appeal by holding that the appellant has failed to adduce any material to show that duty was paid by it in respect of the galleries and the same has not been passed on to the buyers of the goods. 7. Learned counsel submits that the following question of law arise in the present appeal:- "Whether it is just and fair to reject the refund claim when excise duty was paid under protest and against provisional assessment order?" 8. Counsel for the appellant has argued that duty was lia....

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.... hence the appellant cannot be allowed to receive the refund as that would tantamount to unjust enrichment. 12. Apart from the above. Section 11B(1) specifically provides that application for refund shall be accompanied by such documentary or other evidence, as the applicant may furnish, in order to establish that amount on duty of excise in relation to which the refund is being claimed was paid by him and the incidence of said duty has not been passed on by him to any other person. In the absence of any material to show that incidence of duty has not been passed on to any other buyer, it would have to be presumed that the appellant has collected the duty from his customers. The appellant has failed to discharge the legal obligation as n....