Central Excise – credit of sanctioned refund amount to the Consumer Welfare Fund on the ground that the excise duties paid have been loaded on indirectly to the cost of the products and that the same was charged and collected from the buyers – revenue claim that the assessee has not produced any document requesting for provisional assessment or produce any order for provisional assessment – whether in the absence of order under Rule 9 (B), whether the Tribunal was right in holding that the assessment during the period in dispute is required to be treated as provisional – whether the refund would amount to unjust enrichment - revenue in appeal - HELD - The claim for refund is maintainable and the said claim is not barred by limitation, as was held by the Commissioner (Appeals) has attained finality. So, the question of examining the claim for refund on merits does not arise now, once again - If the burden of Excise Duty is passed on to the others, it gets reflected in the Bills and invoices. That is a positive evidence and that was produced to show that no such burden is passed - The appellate authority goes one step forward and found as a fact the expense account of the assessee has reflected the Excise Duty paid. But, he would surmise that the assessee would have taken that component also, while working out the costing of the pump. It is clear that far from finding out as to whether or not the duty burden has been passed on to the others, the adjudicating and appellate authority have gone about looking for negative evidence. Clearly, the very approach is wrong - no merit in revenue appeals and the same are dismissed

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