JUDGMENT
S.S. Kang, Vice President
1. Heard both sides.
2. Appellants filed this appeal against the Order-in-Appeal passed by the Commissioner (Appeals) whereby the refund claim filed by the appellants was rejected on the ground of unjust enrichment.
3. The brief facts of the case are that the appellants filed refund claim in respect of the duty paid under protest on the clearance of waste packages/containers in which the inputs; were received by them. Appellants filed the refund claims in view of the judgment of the Hon’ble Supreme Court in the case of West Coast Industrial Gases Ltd. v. CCE, 2003 (155) ELT 111 (SC). The Adjudicating Authority allowed the refund and directed the same to be credited in the Consumer Welfare Found on the ground that the appellants failed to prove that the burden of duty has not been passed on to their customers.
4. The only contention of the appellants is that they have not charged duty from their customers and also relied upon the two certificates issued by their customers to show that duty has not been paid by their customers. The Revenue relied upon the invoices where duty element has been separately mentioned and there was no evidence that that duty element mentioned in the invoices was not recovered by the appellants from their customers and in some cases, consolidated price was mentioned. Revenue has also relied upon the decision of in the case of CCE, Mumbai-II v. Allied Photographies India Ltd., 2004 (92) ECC 777 (SC) : 2004 (166) ELT 3 (SC).
5. We find that in this case the issue involved is whether the burden of duty has been passed on to the customers. The onus is on the appellants to prove that the incidence of duty has not been passed on to their customers. The Adjudicating Authority in the adjudication order after examining the accounts of the appellants gave a finding on facts that duty has been recovered from the customers by the appellants. The Hon’ble Supreme Court in the case of CCE, Mumbai-II v. Allied Photographies India Ltd. (supra) held that the principles of unjust enrichment are applicable even in case where duty was paid under protest and the onus is on the assessee to prove that the burden of duty has not been passed on to the Customers. In the present case, the assessee has failed to do so. Therefore, we find no merits in the appeal and the same is dismissed.