TMI Blog2004 (7) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... on receivables; that however, the Asstt. Commissioner disallowed a number of expenses including freight charges on finished product for movement of goods post-removal from the factory gate; that they filed an appeal before the Commissioner (Appeals) in which they surrendered all the abatements except freight charges on movements of finished goods post-removal from the factory gate; that the Commissioner (Appeals) vide Order-in-Appeal dated 16-7-98 allowed conditionally subject to verification of the claim; that the Asstt. Commissioner verified the facts and deductions towards weight of finished goods vide Orders dated 29-3-2000; that the assessment were finalised for the financial years, 1988-89, 1989-90 and 1990-91 vide order dated 5-5-97 whereas the provisional assessment was finalised for the financial year, 1995-96 and 1996-97 on 29-3-2000; that consequent to the finalisation of the assessment they filed 5 refund claims for refund of duty paid provisionally on 30-8-2000; that the Dy. Commissioner under Order-in-Original No. 5/2001, dated 13-12-2001 rejected their claim on the ground that they had failed to establish that the incidence of duty of Excise in relation to refund cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that it is undisputed fact that when the assessments were finalised by the Assistant Commissioner for the financial years 1988-89 to 1990-91 on 5-5-97 he has allowed only deductions on account of taxes borne by the Appellants and interest costs on receivables; that the Asstt. Commissioner while finalising the assessment has not allowed the deduction on account of freight charges on finished goods post-removal; that as per Para 95 of the decision in the case of Mafatlal Industries (supra) "any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be. However, if the final orders passed under sub-rule (5) are appealed against - or questioned in writ petition or suit, as the case may be, assuming that such a writ or suit is entertained and is allowed/decreed - then any refund claim arising as a consequence of the decision in such appeal or such other proceedings, as the case may be, would be governed by Section 11B". He contended that the freight charges on finished goods post-removal were not allowed by the Asstt. Commissioner and the said had been challenged by the Appellants in ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he principle of unjust enrichment will be applicable to the refund arising on finalisation of the assessment after the amendment of Rule 9B; that once the bar of unjust enrichment is applicable the onus is on the Appellants to prove that the incidence of duty has not been passed on by them to another person. He has relied upon the decision in the case of CCE, Goa v. Christine Hoden (I) Pvt. Ltd. - 2003 (155) E.L.T. 271 (Tribunal). He mentioned that even after insertion of Section 12A in the Central Excise Act w.e.f. 20-9-91 which requires every person liable to pay duty of Excise to prominently indicate in all the documents relating to assessment, sales invoice and other like documents amount of duty which will form part of the price at which goods are to be sold, the Appellants were not showing duty separately; that accordingly they have not succeeded in establishing that the incidence of duty has not been passed on by them to other persons. 6. In reply the learned Advocate contended that only if a new case is being made out by an assessee after the finalisation of the assessment and any refund arising on account of such new case the bar of unjust enrichment will apply only to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for the financial years 1995-96 and 1996-97 were finalised on 29-3-2000; (iv) that while finalising the assessment the Revenue has allowed deduction only on account of taxes borne by the Appellants and the interest costs on receivables. The Department has disallowed deductions, inter alia, on account of freight charges on finished products for movement of goods post-removal from factory gate; (v) that the deductions on account of freight charges on finished goods was allowed after the Appellants had agitated the matter in appeal before the Commissioner (Appeals). (vi) all the refund claims were filed by the Appellants on 30-8-2000. 8. As far as refund claim relating to allowance of deduction on account of taxes borne by the company and interest cost on receivables for the financial years 1988-89 to 1990-91 are concerned, the bar of unjust enrichment is not applicable in view of the fact that the assessment had been finalised on 5-5-97 and in terms of the judgment of the Constitution Bench of the Supreme Court in the case of Mafatlal Industries, the bar of unjust enrichment is not applicable. It has been held by the Tribunal in the case of Hindustan Lever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndependent refund claim is filed after the final decision under Rule 9B(5), re-agitating the issue already decided under Rule 9B - assuming that such a refund claim lies - and is allowed, it would obviously be governed by Section 11B." 9.3 It is thus clear that the Constitution Bench of the Supreme Court itself has held that bar of unjust enrichment would apply if the final assessment passed under sub-rule (5), is appealed against and refund claim arises as a consequence of the decision in such appeal. The refund claim on account of freight charges has arisen as a consequence of the decision in appeal where the final Order passed under sub-rule (5) was challenged. Accordingly the bar of unjust enrichment will be attracted while dealing with the refund claim of allowing deductions of freight charges. In the earlier case of Hindustan Lever Ltd., 2003 (154) E.L.T. 482, this aspect was not raised and as such the same was not considered. 10. The third issue to be decided is whether the bar of unjust enrichment applies to the refund claims arising out of finalisation of the provisional assessment for the financial years 1995-96 and 1996-97. These assessments have been finalised on 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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