2016 (3) TMI 656

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....t to submission of essentiality certificated from the Directorate General of Hydro Carbons. Since they required material for operations and there was delay in obtaining the said certificates they paid duty. Subsequently they obtained the said certificates and filed refund applications. The said refunds were rejected on following grounds- (i) Unjust enrichment (ii) Refunds were filed without challenging the assessment, in terms of decision of Hon'ble Supreme Court in the case of Flock India - 2000 (120) ELT 285 (SC) The refunds were rejected by the Commissioner (Appeals) also on the same grounds. Aggrieved by the said order the appellants are before Tribunal. 2. Learned Counsel argued that they were unabl....

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....ere was no unjust enrichment, but by itself it is not sufficient evidence. Commissioner (A) has rightly observed that the appellant should produce some reliable evidence of actual transactions. We find that the terms of contract can only point at the possibility of unjust enrichment or otherwise but can not be treated as evidence. The onus of proving that there was no of unjust enrichment was on appellants and they have failed to discharge it. 4. The impugned order also records that the assessment orders for the clearance of spares are appealable orders. To be eligible to claim refund one is necessarily required to challenge the assessment orders as has been held in the case of CCE vs. Flock (India) Pvt. Ltd. (supra). Later on in the cas....

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....gatived by this Court in Flock (India)'s case (supra). Once an order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assessment order. 7. We also see no substance in the contention that provisions for a period of limitation indicates that a refund claim could be filed without filing a....