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2007 (3) TMI 49 - AT - Central ExciseRefund Appellant contended that they have not passed the incidence of duty to buyer and accordingly demand for refund of duty After considering evidence tribunal rejected the appellant contention and not allowed the refund
Issues:
Challenge to order of Commissioner (Appeals) upholding refund claim sanction directing credit to Consumer Welfare Fund; Invocation of doctrine of unjust enrichment; Applicability of precedents on unjust enrichment; Evidence of duty passed on to customers; Interpretation of uniformity in price before and after assessment. Analysis: The appellant challenged the order of the Commissioner (Appeals) upholding the refund claim sanction directing the amount to be credited to the Consumer Welfare Fund. The adjudicating authority had sanctioned the refund claim based on the decision that galleries were not to be considered in determining annual production capacity under the Compounded Levy Scheme. However, the appellant failed to prove that the duty incidence had not been passed on to customers, leading to the invocation of the doctrine of unjust enrichment. The appellant contended that the doctrine of unjust enrichment should not apply, citing the decision of the Supreme Court in a specific case. Reference was also made to another decision upholding that unjust enrichment does not apply when composite prices are shown without indicating duty separately. The appellant argued that duty incidence on galleries had not been passed on as prices remained constant post-duty payment. The department's representative supported the lower authorities' findings, emphasizing the presumption under Section 12B of the Act that duty incidence is passed on to buyers. The appellant's argument that price uniformity indicated no duty passing on was refuted based on a Supreme Court decision stating that price consistency does not negate duty passing on due to various factors. The material on record showed clear mention of Central Excise duty in the appellant's invoices under the Compounded Levy Scheme. The Commissioner inferred that duty passed on to customers, which the appellant failed to rebut. The precedents cited by the appellant were deemed irrelevant in light of positive evidence indicating duty passing on. Consequently, the appeal was dismissed as there was no basis for interference with the impugned order.
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