TMI Blog2013 (6) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... India & Ors. [1996 (12) TMI 50 - SUPREME COURT OF INDIA], has been looked into and a finding has been recorded that there cannot be any unjust enrichment by State Government. The contention that as final product is not exigible, there is no scope for application of principle of undue enrichment, is equally misconceived. The plea & argument that appellant has at times sustained loss is not sufficient to grant refund. The loss suffered may be on account of various factors and if while determining market price of coal, the expenditure on manufacturing process has been looked into, such subsequent loss becomes irrelevant. All the authorities have concurrently found that the appellant-assessee has failed to discharge that burden. We do not see any perversity in that finding. - Decided against the assessee. - Central Excise Appeal No. 6 of 2011 - - - Dated:- 2-3-2012 - B.P. Dharmadhikari and P.D. Kode, JJ. Shri T. Ramesh, Sr. Advocate and S.C. A.S. Mehadia, Advocate, for the Appellant. Shri S.K. Mishra, ASGI, for the Respondent. JUDGMENT By this appeal filed under Section 35G of Central Excise Act, 1944, the appellant has questioned the refusal by the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y have pleaded that sometimes the appellant has also incurred losses . PVC impregnated colliery conveyor belting is part of material handling equipment and a capital goods. The appellant purchased the same from M/s. Dunlop India Ltd., Shahganj, on various dates between 1986 to September 1993. These goods were classified under sub-heading 3920.11/3920.12 of First Schedule to the Central Excise Tariff Act, 1985, and though M/s. Dunlop India Limited, challenged this classification, it paid that duty under protest. The dispute was settled by the Hon ble Apex Court vide its judgment dated 28-3-1985 reported at 1995 (77) E.L.T. 8 (S.C.). The Hon ble Apex Court accepted the contention of M/s. Dunlop India Limited, hence, duty paid under protest turned out to be in excess. The appellant had paid that excise duty as belting was purchased by them and as such, they claimed its refund on 15-4-1997. The amount of which refund is sought is Rs. 60,05,316/- and the appellant contends that the goods were capital goods and as no duty is payable on the final product, there is no question of the appellant passing on the burden of that duty to its customers. They also contend that while fixing price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sthan High Court in the case of Union of India v. A.K. Spintex Ltd., reported at 2009 (234) E.L.T. 41 (Raj.) is squarely attracted. 6. The division Bench judgment of Madras High Court in the case of Collr. of Customs, Madras v. Indo-Swiss Synthetic Gem Mfg. Co. Ltd., reported at 2003 (162) E.L.T. 121 (Mad.) is relied upon to contend that when capital goods are involved and the same are not used in any way, in final product, the theory of unjust enrichment has no application. He has also pointed out that SLP against it has been dismissed by the Hon ble Apex Court [2003 (157) E.L.T. A89 (S.C.)]. According to him, therefore, the questions of law formulated by him in appeal memo and reproduced by us above, squarely arise and need to be answered in favour of the appellant. 7. Shri Mishra, learned counsel, on the other hand has contended that Section 11B(1) dealing with claim for refund of duty, casts obligation upon the appellant to file documents along with its application for refund showing that the burden of that duty has not been passed on by it to any other person. Here, the three authorities below have concurrently found that no such documents were filed and this being finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s allowed, the Assistant Commissioner examined the issue and rejected refund on the ground of unjust enrichment. Then again appeal reached Tribunal, which ordered refund. This order of refund was questioned before the High Court. Thus, entitlement to refund had already crystallized and thereafter the refund was being refused on the ground of unjust enrichment. It is, therefore, clear that view taken is in peculiar facts. The perusal of judgment of the Hon ble Apex Court delivered later in the case of State of Maharashtra v. Swanstone Multiplex Cinema Private Limited, reported at (2009) 8 SCC 235, clearly shows the law that neither tax levier (State) nor tax collector is entitled to retain such duty. The above judgment of Karnataka High Court, therefore, has no application in present facts. The principle of unjust enrichment is therefore relevant here needs to be applied. 10. The contention that as final product is not exigible, there is no scope for application of principle of undue enrichment, is equally misconceived. The perusal of judgment in the case of HMM Ltd. v. Administrator, Bangalore City Corporation, (supra) shows that there the assessee HMM Ltd. used to import withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er considered cost of manufacture as a relevant norm while fixing the prices, the appellant ought to have filed necessary material on record as required by Section 11B(1) of Excise Act. This judgment of the Hon ble Apex Court, therefore, does not help the cause of the appellant. 13. Union of India v. A.K. Spintex Ltd., (supra), is the judgment of Division Bench which considers the provisions of Section 12B. However, discussion therein in para 10 shows that the burden is upon the assessee and it can shift to revenue only if assessee leads reliable evidence about his not passing burden on to the purchaser. This judgment also, therefore, is of no assistance. 14. The judgment of Collr. of Cus., Madras v. Indo-Swiss Synthetic Gem Mfg. Co. Ltd., (supra) is again of no use in present facts. Shri Ramesh, learned counsel, has relied upon paras 29 and 30 of said judgment. We find that Silica crucibles were captively used for manufacture of synthetic gems and the finding of fact recorded is, assessee had not directly passed on Silica crucibles as imported to the customers or buyers. It is in this background, the Division Bench has found that question of passing on incidence of duty paid o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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