2012 (8) TMI 842

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....lant. Shri V.R. Kulkarni, Dy. Commissioner (AR), for the Respondent. ORDER The appeal and stay application are directed against Order-in- Appeal No. BC/28/M-III/2011-12, dated 30-4-2012 passed by the Commissioner of Customs (Appeals), Mumbai-III. 2. The facts of the case are as follows. The applicant M/s. Sai Creation filed a refund claim of Rs. 2,23,254/- being unutilised credit ....

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....s decision in Mafatlal Inds. Ltd. [1997 (89) E.L.T. 247 (S.C.)] and Sahakari Khand Udyog and Others [2005 (181) E.L.T. 328 (S.C.)] cases all types of refund claim have to pass the proof of not passing on the incidence of duty (unjust enrichment) and in the instant case the appellant has not led any evidence to show that they have not passed on the incidence of tax. Hence the appeal before me. 3....

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....udgment of the Hon'ble High Court of Gujarat in the case of Indo-Nippon Chemicals Co. Ltd. - 2005 (185) E.L.T. 19 and the judgment of Opel Alloys P. Ltd. - 2010 (249) E.L.T. 408 wherein it was held that in respect of cases covered by clause (c) of first proviso to Section 11B(2) of the Central Excise Act, 1944, the principles of unjust enrichment are not attracted or applicable. 4. Ld. AR ....

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....provisions of unjust enrichment would apply. When Section 11B providing for grant of refund of excise duty specifically provides that in certain specified situations, the provisions of unjust enrichment shall not apply, the law has to be interpreted and enforced accordingly. 5.2 On an identical issue, the Hon'ble High Court of Gujarat in the case of Indo Nippon cited supra held that the pr....