2015 (6) TMI 153 - AT - Central Excise

Denial of refund claim - unjust enrichment - appellant had not furnished sufficient evidence that the incidence of duty was not passed on to their customers - Held that - The Commissioner (Appeals) observed that the appellant have not submitted the details as to how they arrived at the pricing of the material at the time of bidding for the award of contract with their customer. He further observed that how the payment of excise duty made by the appellant was treated in computation of their pricing and in their books of accounts. I find that after examining the books of accounts the auditor by certificate dated 27.4.2004 had certified that no part of duty paid by the appellant has been reimbursed by the customer. The genuinety and authenticity of the certificate was not doubted by both the authorities below. There is no material available on record to discard the Chartered Accountant certificate. Hence in my considered view there is no need to furnish the cost of material and pricing of the contract. It will be necessary in the case when the Auditor s certificate is not accepted as incomplete or any other reason. Nuclear Power Corporation Limited a Government of India Enterprise had confirmed that they have not reimbursed any Excise Duty to the appellant against the excise duty paid on the invoices of the manufacturer. Thus the other person in Section 11B(1) has certified that they have not reimbursed the duty. In such situation in my considered view there is no requirement to furnish the costing of product and pricing of contract when the certificate of the other person particularly a Government of India Enterprise is found genuine. Hence there is no reason to reject the refund claim on the ground of unjust-enrichment. - Decided in favour of assessee.

Summary

Issues:
Refund claim rejection due to lack of evidence on duty incidence passing to customers.

Analysis:
The appellant appealed against the rejection of their refund claim, emphasizing the inability to provide evidence that the duty incidence was not transferred to customers. The case involved a dispute over the classification of products used in construction, with the manufacturer paying duty and clearing products to the appellant. The appellant sought a refund based on non-reimbursement of duty by the customer, supported by a Chartered Accountant certificate and confirmation from the customer. The authorities rejected the claim citing insufficient evidence on duty passing. The appellant argued that the Chartered Accountant's certification sufficed, challenging the need for detailed costing information. The Revenue representative supported the authorities' decision, highlighting the lack of evidence on duty incidence not being passed to customers.

Upon review, the Tribunal found that the manufacturer paid duty under protest and requested the appellant to claim the refund, as the duty burden was on them. The Tribunal noted the Chartered Accountant certificate confirming non-reimbursement of duty by the customer, which was not disputed for authenticity. The Tribunal emphasized that the burden of proof was discharged by the appellant through the customer's certificate, eliminating the need for detailed pricing information. The Tribunal referred to the requirement under Section 11B of the Central Excise Act to establish non-reimbursement of duty by the customer, which was fulfilled by the customer's certificate in this case, absolving the appellant from proving costing details. The Tribunal concluded that the genuine certificate from a Government enterprise was sufficient to support the refund claim, overturning the previous decisions and allowing the appeal.

In summary, the Tribunal set aside the impugned orders, allowing the appellant's appeal based on the satisfactory evidence provided by the Chartered Accountant certificate and the customer's confirmation of non-reimbursement of duty, eliminating the need for detailed costing information and establishing the appellant's entitlement to the refund.