TMI Blog2014 (6) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... Deputy Commissioner and the Commissioner also. Even these authorities did not dispute that despite increase in the Excise duty and corresponding increase in the additional duties, the goods were sold by the assessee to the consumers exactly at the same price as were being sold prior to January 2001. - considering additional material on record, the assessee, as held by the Tribunal, had succeeded in establishing that the burden of higher duty was not passed on to the consumers. The Deputy Commissioner and Commissioner both simply brushed aside the evidence on record by holding that merely because the price structure has not changed, the burden on the assessee cannot be stated to have been discharged. When we find that in addition to such constant price structure there were other factors having a bearing on the issue, the said authorities could not have rejected the refund claim. The assessee having discharged the burden of establishing the necessary requirement, if the Departmental authorities desired to examine the issue from any other angle or required additional material to satisfy whether the uniformity in the price structure is attributable solely to the assessee absorbing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly. The Central Excise authorities at Vadodara, however, disputed the said classification and vide communication dated 12th December 2000, directed the respondent to pay duty under the heading 2404.90. It is not disputed that under the said heading 2404.90, the basic excise duty leviable was at a higher rate of 16%. There would be corresponding increase in other duties viz., special excise duty and additional excise duty on the basis of such higher excise duty. Under the insistence of the Excise Department, therefore, the assessee had under-protest paid duty at the higher rate for the months of January and February 2011. With effect from 1st March 2001, tariff rate was prescribed which put an end to this controversy. On 13th January 2001, the respondent filed refund claim of Rs. 2,55,81,066/- before the Deputy Commissioner of Central Excise, Vadodara. The Deputy Commissioner, however, issued a show cause notice dated 31st March 2001 calling upon the assessee why such refund claim should not be rejected on the ground of unjust enrichment. In such notice, he noted that the assessee had produced a comparison chart establishing the fact that incidence of duty was borne by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credited to the Consumer Welfare Fund established under Section 12C of the Central Excise Act, 1944 even if considerable. 3. The assessee approached the Commissioner [Appeals] by filing Departmental appeal. Before the Appellate Commissioner, assessee placed written submissions and reiterated the contentions raised before the Deputy Commissioner. It was pointed out that the transaction value had remained the same, despite increase in the duty. The assessee was of the opinion that the matter was mis-interpreted by the Department and the issue would be finalized on the basis of merits shortly. Even the Parliament was in sesin of the matter. It was under these circumstances that the assessee did not increase the price structure of the product, even after the Department required the assessee to change classification. It was, therefore, that there was no change in the total value of the goods sold during the months of January and February 2001, as compared to the price of the same product charged during the months immediately preceding the said period. 3.1 The Commissioner (Appeals), however, did not accept such explanation. He rejected the assessee's appeal and confirmed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to various decisions of the Apex Court; including in case of Mafatlal Industries Ltd. v. Union of India [1997] 5 SCC 536. The Tribunal also referred to a decision of the Supreme Court in case of Asstt. Collector of Customs v. Anam Electrical Mfg. Co. 1997 (90) ELT 260 (SC) and noted that in terms of the said judgment, the assessee had filed an affidavit stating that the company has not passed on the burden of duty to any one else. On the basis of such combined factors, the Tribunal came to the conclusion that the assessee's refund claim was not hit by the principle of unjust enrichment. 5. Revenue has thereupon filed this appeal. Learned counsel Shri Ravani for the Department vehemently contended that - (a) the Deputy Commissioner as well as Commissioner had correctly held that the assessee failed to establish that the incidence of additional duty was not passed on to the consumers. The Tribunal, therefore, erred in reversing such findings; (b) the assessee had shown higher rate of duty in the invoices, clearly indicating that the said duty was charged from the customers; and (c) merely because before and after the increase in the duty, the price of the goods remain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods, despite this change in the duty rate that the assessee charged from the consumers, remained the same. This aspect has been gone into by the Tribunal at a considerable length. In the impugned judgment, the Tribunal compared the different invoices for the period between January-February 2001 and immediately before that. The Tribunal found that despite assessee paying considerably higher rate of excise duty and correspondingly higher duties of special excise and additional excise duties, the price inclusive of taxes remained the same. This could be seen from one such comparative chart that the Tribunal drew in its impugned judgment, which reads thus Sr No. Particulars Duty Liability discharged under Chapter 21 during December 2000 Duty Liability discharged under Chapter 24 during January 2001 vi Total Duty Paid BED Rs. 64,000/- Rs. 88,213.28 SED Rs. 96,000/- Rs. 1,32,319.92 AED ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sorted out very shortly by the legislative changes. The assessee was confident that the objection of the Department was simply not sustainable and that the assessee would surely succeed. It was because of this that the duty was paid under protest but not collected from the consumers. Most significantly, as correctly pointed out by the learned counsel for the respondent, if such issue was peculiar only to Vadodara Commissionerate, the existing distributors of the assessee would not continue to lift the goods from the assessee if sold at a considerably higher price than available from other manufacturers or even other units of the assessee situated outside the jurisdiction of the Vadodara commissionerate. This was a strong indication that the assessee had no choice but to absorb the blow of additional duty even from the stand point of commercial expediency. 12.1 Mere fact that the said invoices indicated Excise duty @ 16% under the heading 2404.90 cannot be fatal to the assessee's claim. Before the Tribunal, the assessee had pointed out that (ii) in terms of the Central Excise Rules, no excisable goods could be cleared from a factory, except under an invoice contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consumer. Answer to this crucial question had to be found from other sources and evidence. 12.3 In view of over-whelming evidence on record suggesting that the assessee had not passed burden of additional duty to the consumers, the Tribunal correctly reversed the decision of the Central Excise authorities. 13. Before closing, two issues remain to be tackled. Firstly, counsel for the Revenue was correct in pointing out that the Tribunal in the impugned judgment has referred to a portion of the decision rendered by the Supreme Court in case of Mafatlal Industries Ltd. (supra), which was a minority view. Despite such inadvertent error on the part of the Tribunal, in our opinion in the ultimate analysis, the Tribunal did not commit any error. 13.1 The second issue is with respect to applicability of the judgment of the Supreme Court in case of Allied Photographics India Ltd. (supra). The said judgment was rendered in the backdrop of a reference made to a larger Bench in view of conflicting decisions of the Supreme Court on the issue of applicability of the principle of unjust enrichment. The question was whether in a claim for refund, after final assessment, is governed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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