2006 (3) TMI 618

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....aid duty of Rs. 2,97,949/-. The appellant filed a refund claim of Rs. 87,188/- which according to them was paid in excess, due to calculating error. A show-cause notice was issued seeking proof from the appellants that the incidence of duty was not passed on. The appellant during adjudication proceedings submitted a copy of C.A. which indicated that the incidence of duty was not passed on and also claimed that the said tools were used in their factory and were not sold at any given point of time. The adjudicating authority relying on the decision of Hon'ble High Court in the case of Solar Pesticides case sanctioned the refund of Rs. 84,753/- to the appellants. The department aggrieved by the order filed an appeal to the Commissioner (Appeal....

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....the Hon'ble Supreme Court in the case of Solar Pesticide and by the Larger Bench of the Tribunal in the case of SRF Ltd. - 2006 (193) E.L.T. 186 (Tri.) - (Order No. 659/05-Cus., dated 24-5-2005) wherein it is held that doctrine of unjust enrichment is applicable even in the case of capital goods used for manufacture of excisable goods. Since the law is very clearly settled it is for the appellant to show that the incidence of duty is not passed on by him to be eligible for refund of duty. In this case the appellant has produced two certificates issued by different Chartered Accountants. In order to appreciate the facts they are reproduced as under :- TO WHOMSOEVER IT MAY CONCERN "I hereby certify that the burden of custom duty of Rs. ....

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....ed from any other person also by Messrs Shilp Gravures Ltd. and it was borne by them only. This certificate is issued upon specific request of the Company. For, N. Gamadia & Co. Chartered Accountants Sd/- (Nilesh Gupta) Proprietor Place : Ahmedabad Date : 27-4-2002 5. It is to be noticed that the appellant produced 2 different Chartered Accountant's certificate before the authorities. The first certificate dated 26-6-1997 does not say anything but simply states that duty has not been passed on to any other persons or party and is issued based on the documents produced by the appellants. The second certificate dated 27-4-2002 is somewhat detail in nature and certifies that the said tools were used by the appel....