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2016 (7) TMI 894 - CESTAT NEW DELHI

2016 (7) TMI 894 - CESTAT NEW DELHI - TMI - Claim of refund - duty was paid under protest or not - unjust enrichment - amount was not recovered from the customers - Held that:- in view of the Chartered Accountant Certificate, payment of duty under protest, reflection of excess duty as receivable in the balance sheet and the certificates of the buyers are conclusive factors to examine the scope of the unjust enrichment and the Revenue having not rebutted the said evidence - Refund allowed - Decid .....

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llant and Shri B.L. Narsimhan, Advocate for the respondent. As per the facts on record, the respondents are engaged in the manufacture of Towels and Napkins which they were classifying under Chapter Heading 60.01. Prior to January, 2002, such classification was being accepted by the Revenue. However, vide adjudication order dated 20/12/2001, the classification of the products manufactured by the respondent was changed by their Jurisdictional Assistant Commissioner from Chapter Heading 60 to Head .....

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against the said adjudication order. In the meanwhile, they would be clearing their goods on payment of higher rate of duty under protest from 23/1/2002. During the period January, 2002 to March, 2003, they continued to sell their final product to their customers at the agreed price in terms of the rate contract entered between the two, but on payment of higher amount of excise. 4. The adjudication order passed by the original adjudicating authority was appealed against and was set aside by Comm .....

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tent of ₹ 25,85,918/-. The said refund claim was examined by the Assistant Commissioner, who observed that inasmuch as the appellant have not reflected excise duty separately in the invoices, it has to be held that they have recovered the higher amount from their customers, even though the total amount so recovered continued to remain the same and thus, the refund was hit by the bar of unjust enrichment. Accordingly, he sanctioned the refund claim and credited the same to the Consumer Welf .....

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that the said amount are recoverable from the Revenue Department. After examining the entire facts, the appellate authority held that the refund of the assessee is not hit by bar of unjust enrichment and he accordingly, sanctioned the same to the respondent. Being aggrieved with the order passed by Commissioner (Appeals), Revenue has challenged the same before the Tribunal. 7. After hearing both the sides as also after going through the impugned order as also the grounds of appeal, we find that .....

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higher rate and after the higher rate of duty cannot be considered to be a factor for holding that the higher amount of duty has not been recovered from the customers. 8. Ld. DR has also referred to the Hon ble Madras High Court decision in the case of Commissioner of Customs (Exports), Chennai Vs. BPL Ltd. 2010 (259) ELT 526 (Mad.) laying down that the Chartered Accountant Certificate produced by the assessee is merely a piece of evidence reflecting upon certain facts which are not sufficient .....

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al Central Excise Authorities is not being disputed. The refund is otherwise due to the assesee is also not a fact in dispute. The entire dispute revolves around the unjust enrichment principle. The said principle has been the subject matter of various decisions of the Tribunal as also of High Courts which we will deal in the succeeding paragraphs. 10. Coming to the factual position in the present case, we note that Commissioner (Appeals) has not merely taken into account the Chartered Accountan .....

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h factor, of course, cannot be held to be a sole factor for deciding the issue but keeping in view the declaration filed by the customers as also the Chartered Accountant Certificate and the fact that the duty was being paid by the assessee under protest as also the fact that such excess duty paid by them was shown in the balance sheet as recoverable from the Revenue, we are of the view that the said documents are sufficient evidences to reflect upon the fact of non-recovery of the duty from the .....

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l compared to the overall transactions or turnover of the appellant. The appellant had filed affidavits and the certificate of the Chartered Accountant certifying the factual position and asserting on oath with documents that duty burden was not passed. We do not agree with the counsel for the respondent that the certificate should be disbelieved. When a professional like a chartered accountant gives a certificate, he owes and takes responsibility of what he certifies as personally ascertained a .....

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rate and prove their claim that they had not passed on the incidence of CVD on the buyers. Reliance is not based upon the certificate alone. 12. Further, we find that the Honble Allahabad High Court in the case of Commissioner of Central Excise Vs. Dabur India Limited reported in 2014 (304) ELT 321 (All.) has dealt with an identical matter and has held that where the assessee deposited the duty under protest with a letter to the department that he does not agree with classification adopted by t .....

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d 6.11.2006 which was in favour of the department has observed that the amount was shown as recoverable from the department in the balance sheet. In the rejoinder affidavit, the respondent has brought on record the extract of details of the amount under the heading Excise Duty Recoverable for the year, 2004-05 which was submitted before the Superintendent on 5.10.2005. The same has been annexed as Annexure-R.A.-1 which mentions at Code 7108 EXCISE DUTY RECOVERABLE- 61,929, 376,47/-. The referenc .....

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observed that certificate of Chartered Accountant and books of account if showing that the excise duty paid was retained and is receivable from Government, the principle of unjust enrichment would not apply. To the similar effect is the Hon ble Gujarat High Court decision in the case of Commissioner of C. Ex. & Cus. Vs. Manisha Pharmoplast Pvt. Ltd. 2008 (22) ELT 511 (Guj.) 14. At this stage, we may also refer to another decision of the Tribunal in the case of Business Oversesas Corporation .....

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