2017 (5) TMI 144

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....riod from 24.02.2009 to 31.08.2009. The appellant filed refund claim of excess payment of duty. The Adjudicating Authority rejected the refund claim of Rs. 14,06,532/- on the ground of unjust enrichment. It is observed that the ultimate buyers/consumers have not suffered any real loss by bearing the burden of duty, no order is made for crediting the Fund A/c.. Rather it is just and appropriate that the amount is retained by state i.e. the people. By the impugned order, the ld.Commissioner(Appeals) upheld the Adjudication Order. 2. Heard both sides and perused the appeal records. 3. I find from the record that M/s.Indian Oil Corporation Ltd., by letter dated 23rd December 2010, in respect of recovery of excess payment of Excise Duty, debit....

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....not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person....

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....erification would definitely assist the Revenue in finding out whether the manufacturer or buyer who makes an application for refund are being unjustly enriched. If it is not possible to identify the person/persons who have borne the duty, the amount of excise duty collected in excess will remain in the fund which will be utilized for the benefit of the consumers as provided in Section 12D. 22. The High Court proceeded on an erroneous assumption of fact as well. It was held by the High Court that there is no unjust enrichment as the burden has not been passed on. The High Court's interpretation of Section 11B is also not correct. 33. In Central Excise Appeal No.34 of 2005 filed by the Union of India through Commissioner of Central E....