Page 118 - ELT_1st August 2020_Vol 373_Part 3

300 EXCISE LAW TIMES [ Vol. 373

which weighed with the authorities in rejecting the claim were (i) that the notifi-
cation provided only for exemption and not for refund; (ii) that the claim was
time barred and (iii) claim was hit by the doctrine of unjust enrichment.
7. The Tribunal rightly found that merely because the notification is
termed as exemption notification, it does not bar any person who may have
wrongly paid duty to seek refund. As regards plea of bar of jurisdiction and in-
competent authority, the Tribunal found that firstly assessee moved an applica-
tion to the Director General of Foreign Trade which was a wrong Forum to seek
this refund but it did show that assessee was not acquiescent about its claim. As
regards plea of unjust enrichment, the Tribunal found that along with the refund
application, the respondent-assessee had appended a certificate from the Char-
tered Accountant attesting to the fact that the duty which has been paid, has been
borne by the assessee and not passed on to anybody else.
8. Learned Counsel argues that finding of the authorities below regard-
ing unjust enrichment has been wrongly discarded.
9. The argument has been rejected because, as noticed above, the as-
sessee has supported his claim with the evidence of certificate by the Chartered
Accountant but the Assistant Commissioner had rejected it holding that since the
excise duty was 12.36%, the assessee must have passed on the burden to the pur-
chaser.
10. As stated above, in the face of evidence of the assessee and lack of
any evidence led in this behalf by the Revenue, this was a purely presumptive
finding.
11. In the circumstances, no question of law much less substantial ques-
tion of law arises. The appeal is dismissed.
12. Since the appeal is dismissed, the pending application, if any,
stands disposed of.

_______

2020 (373) E.L.T. 300 (Mad.)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
C. Saravanan, J.
DLF UTILITIES LTD.
Versus
UNION OF INDIA
W.P. Nos. 25837-25838 of 2016 and W.M.P. Nos. 22135-22136 of 2016,
decided on 19-5-2020
SEZ - Transactions between Developer and Co-Developer Unit - Ex-
emption from Service Tax - Power plant installed by petitioner fell within the
“Processing Area” of the said SEZ, therefore, all procurements of HSD oil for
O & M operation by petitioner made without payment of Excise duty - Peti-
tioner’s power plant situated in “Processing Areas” directed to be demarcated
as “Non-Processing Areas” and Operation and Maintenance (O&M) benefits
withdrawn by virtue of impugned guidelines dated 6-4-2015 - Supply of goods

EXCISE LAW TIMES  1st August 2020  118