Central Excise – appellant is engaged in manufacturing of processed textile fabrics with the aid of Hot Air Stenter - refund claim of duty paid under protest – rejection on the ground of unjust enrichment – HELD - Surprisingly, the ld. Commissioner (Appeals) got the reason to believe on his own that when the tax paid on protest was not shown as receivables in the books of account, the same is deemed to have been recovered from the customer, for which he ignored the Chartered Accountant certificate submitted by the appellant. To the best of my knowledge no such thing can automatically occur and at no point of time the incidence of duty could be realised from the floating or even the same customer, who had not earlier paid the duty as not sought by the appellant in its invoices at the time of sale. Therefore, production of sample invoices before the Commissioner (Appeals) could have been sufficed to establish that tax was not collected from the customer - there is no proof available on the record that duty was specifically collected in a future date from those customers or from the intended future buyers. Apparently amount of duty paid can also not be shown in the book of accounts as receivable because the duty was demanded way back in 1999 and the SCN of such duty demand was dropped on 30.09.2003 - furthermore every expenditure made by the manufacturing company may not necessarily be recovered from the customer - It is not invariably true that when any amount is shown as expenditure or any expenditure is required to be made, the same has to be absorbed in costing of final product unless there is a proof that pricing of the final product has been specifically increased on that score - In the case on hand, it is acknowledged that there was no chance in the price structure of the product immediately after payment of duty on protest - The appellant is entitled to get refund alongwith interest as per Section 11BB of the Central Excise Act, 1944 - The appeal is allowed

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