Doctrine of Unjust Enrichment will be applicable in case of refund of duty paid on Capital goods which are captively consumed

[Bimal jain]

Dear Professional Colleague,

Doctrine of Unjust Enrichment will be applicable in case of refund of duty paid on Capital goods which are captively consumed

We are sharing with you an important judgment of Hon’ble Supreme Court, in the case of Commissioner of Central Excise, Chennai-III Vs. Grasim Industries [2015 (4) TMI 389 - SUPREME COURT] on the following issue:

Issue:

Whether Doctrine of Unjust Enrichment can be applicable in case of refund of duty paid on Capital goods which are captively consumed?

Facts and background:

Grasim Industries (“the Respondent”) purchased Electro Static Precipitators (“ESPs”) from BHEL, Ranipet on which, concessional 5% ad valorem duty was payable in terms of the Notification No.78/1990-CE dated March 20, 1990 provided an officer not below the rank of Deputy Secretary in the Ministry of Environment and Forests (MoEF) certifies that the goods manufactured are meant for pollution control purpose.

Since, the dispute arose as to whether the Respondent was entitled for concessional rate of duty or not, the Respondent paid normal rate of 15% ad valorem duty and sought for refund of the extra duty paid amounting to ₹ 27,66,970/-. However, the Ld. Commissioner of Central Excise refused to release this refund claimed on the ground that the Respondent had passed on the burden and therefore refunding the extra duty paid would result in unjust enrichment. On appeal being filed to the Ld. Commissioner of Central Excise (Appeal) Chennai, wherein also refund was rejected.

Thereafter, the Respondent preferred an appeal before the Hon’ble CESTAT, where the appeal was allowed in favour of the Respondent by holding that the Capital goods viz. ESPs have been only used captively for pollution control purpose and the same is not used for processing or manufacturing of any other final product and therefore there is no question of passing on the burden of duty to anyone. Being aggrieved, the Revenue preferred an appeal before the Hon’ble Supreme Court.

Held:

The Hon’ble Supreme Court relying upon the decision in the case of Indian Farmers Fertiliser Coop. Ltd. Vs. C.C.E. Ahmedabad [1996 (7) TMI 141 - SUPREME COURT OF INDIA] and Union of India Vs. Solar Pesticides Pvt. Ltd.[2000 (2) TMI 237 - SUPREME COURT OF INDIA] (“Solar Pesticides Case”), held as under:

1. If a particular material is used for manufacture of a final product that has to be treated as the cost of the product. Insofar as cost of production is concerned, it may include Capital goods which are a part of fixed cost as well as raw material which are a part of variable cost;

2. Therefore, the principle laid down in Solar Pesticides Case that unjust enrichment applicable in case of captive consumption, would extend to Capital goods which are used in the manufacture of a product and have gone into the costing of the goods;

3. In order to come out of the applicability of the doctrine of unjust enrichment, it therefore becomes necessary for the assessee to demonstrate that in the costing of the particular product, the cost of Capital goods was not taken into consideration;

4. The observation of the Hon’ble Tribunal that Capital goods viz. ESPs have been only used captively for pollution control purpose and the same is not used for processing or manufacturing of any other final product and therefore there is no question of passing on the burden of duty to any one is erroneous in law.

Thus, the Hon’ble Supreme Court allowed the appeal in favour of the Revenue by setting aside the decision the Hon’ble Tribunal and held that Doctrine of Unjust Enrichment will be applicable in case of refund of duty paid on Capital goods, which are used captively.

Thanks and Best Regards,

Bimal Jain

FCA, FCS, LLB, B.Com (Hons)

Delhi:

Flat No. 34B, Ground Floor, Pocket - 1,

Mayur Vihar, Phase - I,

Delhi - 110091, India

Desktel: +91-11-22757595/ 42427056

Mobile: +91 9810604563

Chandigarh:

H. No. 908, Sector 12-A,

Panchkula, Haryana - 134115

Kolkata:

Ist Floor, 10 R G Kar Road

Shyambazar, Kolkata - 700 004

Email: bimaljain@hotmail.com

Web: www.a2ztaxcorp.com

Disclaimer: The contents of this document are solely for informational purpose. It does not constitute professional advice or recommendation of firm. Neither the authors nor firm and its affiliates accepts any liabilities for any loss or damage of any kind arising out of any information in this document nor for any actions taken in reliance thereon.

Readers are advised to consult the professional for understanding applicability of this newsletter in the respective scenarios. While due care has been taken in preparing this document, the existence of mistakes and omissions herein is not ruled out. No part of this document should be distributed or copied (except for personal, non-commercial use) without our written permission.