TMI Blog2017 (3) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... so Vermicelli falling under the Central Excise Tariff Act, 1985. They are registered with Central Excise Department and were filing returns regularly. On 25.03.2011 the department issued a letter directing the appellant to pay duty on the Vermicelli cleared by them. As per the direction of the department the appellants paid duty. Thereafter they requested clarification from the department and vide letter dated 13.10.2011 the Additional Commissioner informed them Vermicelli is not a dutiable product. Thereafter the appellant filed refund of the amount of ₹ 2,84,320/- which was paid as excise duty on Vermicelli for the period 24.03.2011 to 13.08.2011. A show cause notice was issued proposing to reject the refund claim on the ground of unjust enrichment. After due process e of law, the original authority sanctioned an amount of ₹ 2,84,320/- and credited the amount to the Consumer Welfare Fund (CWF). An appeal was preferred against this order before the Commissioner (Appeals) and vide order impugned herein, the Commissioner (Appeals) upheld the order passed by original authority to credit the amount to CWF. Hence this appeal. 2. On behalf of the appellant, the Cd. Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give rise to a situation where the incidence of duty has been passed on to the buyer. He relied upon the judgment in the case of Hindustan Lever Ltd vs CCE, Belapur [2009 (233) ELT 511 (Tri-Mumbai] . It was argued by the Ld. AR that in the said case, the Tribunal had discussed that even though CUM duty price was shown in the commercial invoices and the duty was paid by backward calculation as the gate passes showed the duty element, the refund is hit by unjust enrichment. 4. I have heard the submissions made by both sides. Undisputedly the appellants had paid the duty on the Vermicelli only on direction by the department. There after they have filed a refund claim for the excess duty paid by them. According to appellant the duty element on Vermicelli was arrived at by them on the sale price by backward calculation. On perusal of the reply to show cause notice, the appellant has explained their contention how the pricing has not changed though the duty was mentioned in the invoices. The relevant portion of reply notice is reproduced as below: 4. We have submitted in our covering letter dt. 12.1.2012 to our refund claim how the said principle does not apply to our case. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipt of the invoice amount Had there been no excise duty payment, we would have received more amounts towards sales price. 5. It is thus the case of the appellant that though they have mentioned the duty element, the same has not been received from the dealer. To support the contention the appellant has produced the Chartered Accountant certificate who has certified that the duty Incidence has not been passed on to the buyers. 6. The presumption envisaged in Rule 12B is a rebuttable one. In the case of Amadalavalasa Co-operative Sugars Ltd., (supra) the Co-ordinate Bench of the Tribunal has referred to the judgment laid in Swaroop Fibre Industries Ltd., Vs Commissioner [2000 (120) ELT 510 (Tri)] . In para 5 of the said decision in Amadalavalasa Cooperative Sugars Ltd., the facts have been narrated which are almost similar to the case in hand. For better appreciation, the relevant paragraph is reproduced as under: 5. We have gone through the records of the case carefully. The issue is simple. The contract of the appellants with the buyer indicates that the price to be paid for the goods is inclusive of duty payable. Suppose the price is ₹ 100/- and if the du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods to the buyer, the buyer did not agree for payment of Excise duty on the impugned goods because they considered it as waste and it was also seen that no other customer vas paying duty on such waste. It is also seen that in the contract between the respondent and the buyer, it is mentioned that the price agreed was inclusive of duty. As the buyer did not agree to pay the Excise duty on waste, a specific clause was incorporated in the MOU which read as: 3.1 However, it is clearly understood, that as M/s. KMCL is paying the Excise Duty, under protest and in the event of any event at a future date, JIL will have no claim whatsoever All this shows that what has been received by the respondent from the buyer is only the contracted price. When Excise duty is not payable on the impugned goods, the contracted price does not include the Excise duty at all. That means, the respondent only has borne the incidence of duty. When the duty is not payable and when the same has not been passed on to the buyer, the respondent is entitled for the refund and there is no unjust enrichment. In these circumstances, we hold that the order of the Commissioner (A) is correct. Moreover, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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