2008 (1) TMI 144

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.... dispute was resolved in favour of the appellant. During the pendency of the dispute the appellant had paid this amount on the direction of the revenue vide TR-6 challan but under protest Having succeeded in their appeal before the Tribunal the appellant filed a refund claim. The Commissioner (Appeals)  while upholding the  adjudicating authority's order, which sanctioned the refund claim, but transferred the amount to consumer welfare fund held as under : "6. In the present appeal I find that the Adjudicating Authority  has probe into the matter of unjust enrichment. The appellants have not put forth any evidence to prove that the incidence of duty has not been passed on. Merely because the duty was paid as pre-deposit or....

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....nd Udyog Ltd. 2005 (181) ELT 328 (SC). It is his submission that in this case the appellant had debited the amount in the profit and loss account as an expenditure and hence they have recovered it from the customers indirectly.  6. The undisputed fact in this case is that the appellant had succeeded in their claim of exemption before the Tribunal and revenue has not filed any appeal against the said order. It is also undisputed that the appellant had deposited duty during the pendency of the proceedings before various forums. It is also undisputed that the amount had been deposited by the appellant "under protest". All these facts only indicate, that the appellant, right from the beginning disputed the liability of the duty. I find ....

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....bsequent date. This has been held to be sufficient to replace the presumption raised under Section 12B of the Act.  Therefore, we find that no question of law warranting admission of this matter would arise and accordingly the application filed by the Revenue is dismissed." As against these, the reliance placed by the ld. SDR on the judgment of the Apex Court in the case of M/s Sahakari Khank Udyog Ltd. (supra) requires to the addressed. I find that in the case of M/s Sahakari Khank Udyog Ltd.(Supra), Hon'ble Supreme Court was dealing with a case where the rebate on the production was considered and in para 49 it was held that "All the authorities below have expressly recorded a finding that the appellant-Mandal has recovered the am....