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M/s Dalmia Cement (Bharat) Ltd. Versus Commissioner C & C.E Nellore

Refund claim of excess duty paid - unjust enrichment - manufacture of Cement and Clinker - By Notification No. 12/2012.CE dated 17-03-2012, the rate of duty for cement other than those cleared in packaged form (ie. loose cement was enhanced from 10% to 12%. - Later, a corrigendum to Notification No. 12/2012 was issued as F. No 334/1/2012-TRU dated 22-03-2012 by which proviso was inserted to Sl.No.52. Thus, the rate of duty payable on Sale to Industrial & Institutional Consumers became 12%, same .....

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Decided in favor of assessee. - E/23837/2014 - Final Order No. A/30512/2016 - Dated:- 8-6-2016 - Ms. Sulekha Beevi, C.S. Member (Judicial) Shri S.Gokarnesan, Advocate for the Appellant Shri V. Ramakrishna, AR for the Respondent ORDER The appellant is aggrieved by rejection of refund claim on the ground that the amount is hit by the doctrine of unjust enrichment. 2. The appellant, M/s Dalmia Cement(Bharat) Ltd is engaged in manufacture of Cement and Clinker and are registered with Central Excise .....

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the Central Excise Act, 1994. iii) Cement cleared in other packaged form(loose cement) where duty is payable on the basis of transaction value in terms of Section 4 of Central Excise Act, 1944. 3. The Issue in the present case is in respect of cement cleared in packaged form, where RSP is not required to be affixed on bag (S.No.(ii) above) and duty is payable on the basis of transaction value. 4. The cement in packaged form where RSP is not required to be affixed on bags attracted the same rate .....

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f duty would be the same as that of loose cement. 5. Later by Notification No. 12/2012.CE dated 17-03-2012, the rate of duty for cement other than those cleared in packaged form (ie. loose cement was enhanced from 10% to 12%. This notification did not contain the proviso to Sl.No.52. As such the duty payable on loose cement was 12% and that of cement cleared in packaged form where RSP is not. required to be affixed (sale to Industrial and Institutional Consumers) was 12% Adv. + ₹ 120 per m .....

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7; 120/- per MT. specific rate. Pursuant to the Corrigendum, appellant filed refund claim for the excess duty paid. According to the appellant as the corrigendum relates back to 17-03-2012, the excess amount paid is not a duty at all and that being merely a deposit, it has to be refunded. Being merely a deposit unjust enrichment is not applicable. The second argument is that, there is no change in the price collected from customers. That therefore, the incidence of duty has not been passed on an .....

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sessee except by issue of credit note to the customers. No such proof /evidence have been produced. There is no indication of reduction in prices pursuant to reduction in duties." 9. The appellant carried the issue in appeal before the Commissioner (Appeals) and vide the Order impugned herein, the Commissioner (Appeals) rejected the refund upholding the order of the original authority. The Commissioner (Appeals) observed that appellant had cleared the goods on charging applicable rates of d .....

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stability in price does not lead to an irresistible conclusion that burden of duty has not been passed on to the customers. In the absence of documents to substantiate that incidence of duty is borne by them, the refund amount is hit by unjust enrichment. 10. The Commissioner (Appeals) failed to rely on the Order-in Appeal dated 22-01-2014 passed in appellant's own case in which, the Commissioner (Appeals) applied the dictum laid in the case of CCE, Gurgaon Vs Uniproducts Ltd. reported in 20 .....

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is no change in price collected from customers before or after issuance of notification 12/2012 or the corrigendum issued on 22-03-2012. (ii) Though the higher duty was shown in the invoices, it was done so only on account of statutory requirement as per Rule 11 of Central Excise Rules, 2002. (iii) The difference amount(excess paid ) paid is only a deposit and not duty. After issuance of corrigendum, the Government has no power to collect excess amount as duty. It becomes only a deposit. For th .....

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Central Excise invoices. On issuing such invoices, the presumption under Section 12B arises, and unless the contrary is proved, the duty is deemed to be passed on to the buyer. 14. It is not disputed that rate of duty payable is 12% Adv. during the relevant period(from 18-03-2012 to 24-03-2012), so also it is not denied that appellant mentioned the duty separately in the invoices. 15. The appellant has furnished a comparison chart showing excess duty paid in the case of Institutional/industrial .....

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012 (C) Invoice No : 1300161013 (D) Customer Name : Chamundi Constructions (E) Quantity : 25 (F) Total invoice amount : ₹ 1,27,000/- (G)VAT : ₹ 16,083/- (H) Total Excise Duty : ₹ 14,457/- (l) Base value including freight in invoice : ₹ 96,460/- (J) Less freight : ₹ 4,493/- (K) Assessable Value: Rs. 91,967/- The appellant has done a backward calculation to arrive at the excess duty paid consequent to corrigendum issued. (L) Gross amount as per invoice : ₹ 1,27, .....

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as not changed prior to 17-03-2012 or after during the period 17-03-2012 to 24-03-2012. 17. Another argument advanced by the counsel is that the excise duty was mentioned in the invoices due to statutory requirement. That only because the excise duty happened to be mentioned in invoices it does not mean that duty has been passed on, as the price remained the same. The learned counsel relied on the judgment laid in Commissioner Vs Dhariwal Industries Ltd 2014(303) ELT 496(Guj) which though appeal .....

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reason of unjust enrichment. The assessee produced a comparison chart establishing that incidence of duty was borne by assessee and not passed on to customers. However, taking note of the fact, that invoices had separately shown the Central Excise Duty, which would mean that duty is passed on to customer, the refund claim was rejected. In second appeal, the Tribunal compared the invoices of the disputed period as well as the period immediately preceding to such period and came to the conclusion .....

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Ltd vs UOI 2014(306) ELT 377(All) the Hon'ble High Court had occasion to analyse the nature and effect of corrigendum. It was observed that corrigendum is not an amendment or modification or alteration in the earlier notification so as to make a change therein as such, but when the author of document makes a correction, it relates back to the date of initial authority for the reason that correction means whatever written was not correct or there was some mistake which needs to be corrected. .....

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