2007 (5) TMI 118

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....dent by the Commissioner (A) has been done so without considering the issue of unjust enrichment. His submission is that the amount of duty which has been sanctioned to the appellant was subsequently reversed in accounts by the respondent by way of credit note He reiterates the findings of the Commissioner (A). 3. Considered the submissions made by the learned SDR. The issue involved in this case is whether unjust enrichment will be applicable while sanctioning the refund claim to the respondent. The goods were dispatched twice to M/s. Jindal Vijaynagar Steel Ltd. A/c. Stewarts and Lloyds on 29-3-98 and 25-1- 99 and were returned as being undelivered to the purchasers. It is on record that the respondent had followed the provisions of Ru....

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....erved that, "Para 6- On careful consideration of the submissions and on perusal of the entire order of the Commissioner, we are in agreement with the Commissioner (Appeals) Order as the same is just, legal and proper. In the present case, there was no sale by the assessee to their customers. The goods were rejected which were returned to them. They had issued credit notes which were issued not after the goods had already left the place to the consumers in the market. The debit notes and credit notes were issued only to facilitate return of goods for accounting purpose. The Commissioner's finding that there was no unjust enrichment has not been seriously challenged. The grounds taken are academic. In the present case, the ratio of the Ape....

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.... by the learned SDR is that burden to show that the incidence of duty has not been passed on is on the assessee and not on the revenue as held by the Commissioner. This is also a well taken point. In classification and valuation matters, the burden is always on the revenue to discharge their burden of classification and under valuation. So also in the case of charges of clandestine removal and suppression of facts, the burden is on the revenue to discharge the same. This is on the principles that one who alleges should prove it. While in the case of principles of unjust enrichment it is for the party to show that the burden of incidence of duty has not been passed on to the consumers. On their showing the same, the burden shifts on the Reve....