TMI Blog2010 (8) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... ould disclose that the Ministry of Energy, Department of Coal had not taken into consideration the element of duly while fixing the coal price. Refund claim rejected - Decided against the assessee. - E/1946/2005 - 638/2010-EX(PB), - Dated:- 3-8-2010 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. Shri T. Ramesh, Advocate, for the Appellant. Shri Anil Khanna, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. Heard the learned Advocate for the appellants and learned DR for the respondent. 2. This appeal arises from order dated 28-2-2005 passed by the Commissioner (Appeals) Kolkata. By the impugned order, the appeal filed by the appellants against the order of the adjudicating authority was dismissed. The adjudicating authority namely, the Assistant Commissioner, Kolkata by his order dated 11-7-2001 had rejected the refund claim of the appellants to the tune of Rs. 60,05,316/-. 3. The appellants filed their refund claim in relation to sum of Rs. 60,05,316/- on 15-4-1997 on the ground that the said amount was paid by them in excess of duty on PVC Conveyor Belt purchased by them from M/s. Dunlop India Limited, Sahaganj d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that as far as point of bar of limitation is concern, the Commissioner (Appeals) has answered the same in favour of the appellants and, there is no appeal filed by the department in relation to the said decision nor there is any cross objection preferred by the department in that regard. He, therefore, submits that the said issue stands finally decided in favour of the appellants. As far as the point of unjust enrichment is concerned according to the learned Advocate since the final product manufactured by the appellants being non-excisable and the goods in question being capital goods, they are non-consumable and in those circumstances there was no occasion for the appellants to pass on the duty burden upon the consumers of the final product. The goods in question being Conveyer Belt, the same did not form part of ultimate product and hence there was no material to disclose that the duty burden in relation to such goods also was passed on to the consumers of the final product. According to learned Advocate, these aspects of the matter were not appreciated in proper perspective by the authorities below while rejecting the refund claim. He further submitted that once the authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of the Apex Court in the matter of HMM Ltd. v. Administrator, Bangalore City Corporation reported in 1997 (91) E.L.T. 27 (S.C.), in support of the contention that duty paid on capital goods do not form part of the cost of the final product and, therefore, there is no occasion to pass on the duty burden paid on capital goods to the consumers of the final product. 7. On the other hand DR submitted that the duty paid on the capital goods is not excluded from the applicability of the principle of unjust enrichment and the same is clearly applicable even in relation to the refund claim pertaining to the duty paid on the capital goods. Reliance was sought to be placed in that regard in the decision of the Apex Court in Union of India v. Raj Industries reported in 2000 (120) E.L.T. 50 (S.C.) and of the Larger Bench of the Tribunal in the matter of SRF Ltd. v. Commissioner of Customs, Chennai reported in 2006 (193) E.L.T. 186 (Tri.-LB.). He further submitted that the authorities below have arrived at the finding that the appellants have failed to produce necessary documentary evidence in relation to the claim for refund and particularly to satisfy the requirement of the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly where any duty has been paid under protest. Undoubtedly, the period of one year in the second proviso was introduced w.e.f. 12-5-2000, prior to that the same was confined to six months. 10. Plain reading of the above provision would disclose that the same apparently does not make any difference between the duty paid on the final product or the inputs or the capital goods, the provision nowhere specifies that in case of duty paid on capital goods, the assessee claiming the refund need not establish that he had not passed on the duty burden to a customer, the provision of law, therefore, apparently applies to all the cases of refund including the case of capital goods. 11. The contention on behalf of the appellants however, is that the capital goods, not being consumable, the same do not form part of the ultimate final product and therefore the duty element in relation thereto would not form part of the sale price of the final product. 12. Whether capital goods would form part of the final product or not cannot be decisive factor for the purpose of deciding whether the duty paid on capital goods has been passed on to the buyers of the final product or not. Even in case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved above, the same being the question of fact, it is necessary for the assessee to establish the same by relevant evidence in that regard. There can be no presumption that merely because the final product is non-excisable that therefore, the duty paid on the inputs or the capital goods is not included in the sale price of the final product. 15. The materials on record nowhere disclose any evidence having been placed on record by the appellants to show that the duty clement in relation to the capital goods in question did not form part of the sale price of the final product, apart from contending that the sale price of the final product was fixed by the Government under the notification and it related to the gradation of the final product. The contention based on the price fixation is merely figment of imagination, without any substance. 16. Perusal of notification dated 8-1-1986 in relation to the price fixation of the coal of different grades nowhere discloses that the Government had either excluded the duty element in relation to the inputs or the capital goods nor it discloses inclusion thereof. The notification merely discloses various prices with reference to grade speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to be drawn to para 30 of the judgment wherein it has been held thus :- 30. It is thus crystal clear that the imported silica crucibles are captively used for the manufacture of synthetic gem, and not consumed in the manufacture of synthetic gem, inasmuch as it did not become a part and parcel whether separable or not, and it was captively used only as refractory goods, which could withstand high industrial temperature, which was necessary for such process of manufacture. What is further revealed is that the company had not directly passed on silica crucibles, as imported, to the customers or buyers. In such circumstances, we are of the view that the question of passing on the incidence of duty paid on silica crucibles did not al all arise . 19. It is to be noted that in the said case before the Madras High Court the assessee was the manufacturer of synthetic gem. It had imported silica crucibles which were assessed by the adjudicating authority as classifiable under Customs Tariff Heading 70.21 and under item 23-A(4) of the Central Excise Tariff Act and consignments were cleared on payment of duty as was demanded. The assessee thereafter filed refund claim on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s entitled for refund. The decision, therefore, was in a totally different set of facts and circumstances. 20. Attention was also drawn to para 29 of the decision of the Madras High Court while contending that though the issue for consideration as was framed by the Madras High Court did not specifically refer to the point in the nature under consideration, the same was considered while dealing with the issue No. 2 by the High Court and that the same is apparent from the reading of para 29 and 30 of the decision. It is difficult to accept this contention. Mere passing reference to certain facts while arriving at the conclusion which has been arrived at, cannot be construed to mean that the Court has considered the point which had never arisen for consideration. Besides reading of para 29 refers to the details which were disclosed by the assessee regarding the function of silica crucibles in the process of manufacture of synthetic gem. It also discloses the fact that such crucibles were neither sold nor traded. There is a specific observation that from the details disclosed regarding the function of the crucibles, it was revealed that the crucibles were not consumed in the manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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