TaxTMI 
TaxTMI 
2018 (5) TMI 2047
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....f Rs.21,39,201/- consequent to finalizing of assessment pertaining to 2006-07. 2. It is the claim of the Learned Counsel that the refund in consequence of finalization of provisional assessment is to be guided by rule 7(6) of Central Excise Rules, 2002 and seeks support of the decision of the Hon'ble Supreme Court in Mafatlal Industries Ltd v. Union of India [1997 (89) ELT 247 (SC)] which held that '95. Rule 9B provides for provisional assessment in situations specified in Clauses (a), (b) and (c) of sub-rule (1). The goods provisionally assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the goods which are finally assessed. Sub-rule (5) provides that "when the duty leviable on th....
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....oks of account suffices for establishing that the burden of duties had not been passed on. A number of other decisions have also been relied upon. Drawing attention to the certificate dated 18th September 2018 of Chartered Accountant, it was submitted that the first appellate authority had erred in not giving due weightage to these evidences. It was pointed out that, in an identical issue pertaining to 2002-03, the Tribunal vide order no. A/87232/2017/SMB dated 17th March 2017 for disposing off appeal no. E/872/2010 challenging order-in-appeal no. AKP/NSK/77/2010 dated 19th March 2010 had held that '5. I find that the appellant have made provision in the books of account in respect of this refund amount and shown as receivable in t....
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....der-in-appeal no. YDB/75/M-III/2009 dated 17th September 2009 of Commissioner of Central Excise (Appeals), Mumbai -III, had accepted the very same documents for the years 1999-2000 to sanction the refund claim. 4. Learned Authorised Representative places reliance on the decision of the Hon'ble Supreme Court in Commissioner of Central Excise, Madras v. Addison & Co Ltd [2016 (339) ELT 177 (SC)] to the effect that 16. In the instant case, the Assessee has admitted that the incidence of duty was originally passed on to the buyer. There is no material brought on record to show that the buyer to whom the incidence of duty was passed on by the Assessee did not pass it on to any other person. There is a statutory presumption under ....
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....judice. 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 who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition. The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected ....
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....to any other person, which includes the ultimate consumer as well. The findings in the Order-in-Original and the Order-in-Appeal are that the excise duty paid originally at the rate of 8.8 per cent was passed on from the Assessee-processor to the owner of the fabric and later to the customers. The point in this Appeal is also identical to that of Civil Appeal No. 7906 of 2002. The above appeal of the Revenue is allowed.' 5. However, Learned Counsel draws attention to '35. The respondent-Assessee is a 100 per cent Export Oriented Unit (EOU) manufacturing cotton yarn. The respondent filed an application for refund of an amount of Rs. 2,00,827/- on 14-8-2002 on the ground that it had paid excess excise duty at the rate of 18.11 per....