2009 (5) TMI 87

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....cise Act after holding that the assessee's refund claim was hit by the bar of unjust enrichment. The first appellate authority, in an appeal filed by the assessee, found that the incidence of duty had not been passed on to the buyer and, therefore, the refund was liable to be sanctioned and paid to them. Aggrieved by the decision of the Commissioner (Appeals), the department in the present appeal submits that the incidence of duty had been passed by the respondent to the buyer as clearly indicated in the relevant invoice. The appellant further submits that the burden of duty was not taken back at the appropriate stage, whether by way of issue of credit note or otherwise. It is also stated that the case law cited by the Commissioner (Appeals....

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....ent. After considering the rival submissions, I have, at the outset, found the stay application to be infructuous as rightly pointed out by the counsel. The application is dismissed. However, in the nature of this case, a summary disposal of the appeal is called for. Accordingly, I proceed to deal with the appeal. 3. It is not in dispute that the amount of Rs. 2,16,698/- (excise duty plus Education Cess) is an excess payment made by the respondent on the goods supplied to the Directorate of Family Welfare, Govt. of NCT of Delhi under cover of invoice no. 1112001591 dated 28-10-06. But for the question of unjust enrichment, this amount would have been refundable in cash to the party. The issue now is whether the claim for this refund is hit....