TaxTMI 
TaxTMI 
2026 (4) TMI 711
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....the appellant. It did wait about a year for such refund of the duty as per Rule-21 sub-rule-3 but Respondent had not followed the Rule. Appellant, thereafter, had filed refund application under Section 11B of the Central Excise Act but that was rejected on the ground of being hit by unjust enrichment and the only justification available in the first and second round of litigation for such rejection was that the said amount was shown in the Appellant's Profit & Loss Account as expenditure and not an amount receivable. Appellant is before this Tribunal challenging the legality of the said order after the direction contained in the order passed by this Tribunal in the first round of litigation was not duly followed. 3. I have heard from both the sides and perused the case record. Vide order passed by the Tribunal on dated 17.03.2017, the following direction was given while remanding the matter back for re-adjudication; I find that only issue involved is unjust enrichment in respect of refund claim filed by the appellant against the payment of Anti Dumping Duty. Both the lower authorities held that the incident of duty has been passed on only on the basis that duty has been....
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.... from its customers by revision in the selling price and the CA is also not statutory auditor of the appellant. Therefore the said Chartered Account's certificate which merely indicates that the duty liability appears not to have been passed on cannot be accepted as evidence in support of non-passing of the burden of incidence of duty. This issue has been settled by the Apex Court in the case of Allied Photographic India Ltd [2004 (166) E.L.T. (S.C.)." 4. During course of hearing of the appeal, Ld. Counsel for the Appellant Mr. Hans Raj Garg argued with force that Sub-rule-3 of Rule-21 of the Anti Dumping Duties Rules, 1995 clearly stipulates that provisional ADD already imposed and collected, if any, shall be refunded to the importer, if in accordance to sub-Rule 4 Rule 18 of the said ADD Rules, 1995 duty is withdrawn by the Central Government such collection shall be refunded, which means he is not required to file the refund claim otherwise the language would have been " the importer shall be entitled to a refund" for which he relied upon the decision of this Tribunal passed in the case of M/s. Caprihan India Ltd - 2001 (3) TMI 126-CEGAT, Court No. 1, New Delhi and M/s. Savit....
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....r vide which C.A. certificate was held to be not un-acceptable piece of evidence. Further in placing reliance on the decision passed in the case of Hindustan Petroleum Corporation Ltd as reported in 2015 (317) ELT 379 Tri.Mum, he argued that it was clearly held in the said judgment that Assessee itself has treated the amount as expenditure and not as claims receivables, it cannot be said to have passed the test of unjust enrichment (this was also relied upon by the Commissioner (Appeals) in his order), for which he sought no interference in the order passed by the Commissioner (Appeals). 6. I have gone through the Appeal Paper Book and written submissions viz.a.viz. relevant provision of law and the relied upon decisions cited by adversaries. At the outset, it can be said that going by Rule-21 of the ADD Rules, 1995 there is no requirement of filing refund application for refund since the Respondent was obligated under the Rule to refund the same as it says such collection, if any, between imposition and withdrawal shall be refunded but appellant was compelled to file the same within one year of such withdrawal notification since refund was not suo-muto granted to it and the onl....
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....oncern set up by an Act of the Parliament, amount receivable in future is normally termed as 'Contingent Asset' since the availability of such asset would be Contingent/ conditional to fulfilment of certain other conditions. In the definition chapter called Provisions, Contingent Liability and Contingent Assets, under Para 10.5 it has been clearly mentioned that a Contingent asset is a possible asset that arises from past event, the existence of which will be confirmed only by the occurrence or non-occurrence of one or more uncertain future events not wholly within the control of the enterprise. Similarly, under Para 30 of the said chapter, it is mentioned that an Enterprise should not recognize a Contingent asset and Para 33 states that it should not disclose it in the Financial Statement. This being the Accounting Principal there is a requirement to examine as to how the Appellant had maintained its Financial Statement during the relevant period to find out, if exclusively alone from this statement, unjust enrichment is established or bypassed! 5. In a written note, Appellant has submitted a chronology of dates and events in which under serial no. 9 it has mentioned that....
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....of unjust enrichment as reflected in Provisio (d) and (e) of Sub Section(2) of Section 11B of the Central Excise Act, 1994. It reads; d) the duty of excise and interest, if any, paid on such duty paid by the manufacturer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (e) The duty of excise and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; 7. This Provision has not stated anywhere that any document is required to be produced before the Assistant Commissioner or Deputy Commissioner of the Central Excise to pass the burden of unjust enrichment but to his satisfaction he can call for and examine documents to arrive at a finding that such incident of duty was not passed on to any other person. Therefore, the general perception that burden of proof is on the assessee to establish that incidence of duty was not passed on to any other person is true to the extent that in the case where allegation is made concerning passing of such duty incidence to any other persons, then only he would be in a po....