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Commissioner, Customs, Central Excise & Service Tax Versus M/s Xerox India Ltd.

Refund claim - doctrine of "unjust enrichment" - Whether the CESTAT is justified in allowing the appeals of the respondent assessee and in permitting refund of excise duty to it under Section 11B of the Act even though the presumption of Section 12B of the Act was not successfully dislodged by the respondent assessee? - Held that: - when no presumption arises under Section 12B of the Act, it is not for the respondent assessee to dislodge any such presumption by adducing evidence to the contr .....

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issioner of Sales Tax NOIDA Vs. Atrenta India Pvt. Ltd. [2017 (4) TMI 563 - ALLAHABAD HIGH COURT] in connection with the refund of Cenvat Credit Rules, 2004 held that where refund is otherwise admissible the interpretation should justify refund to the party as department cannot retain legally refundable revenue. - Appeal dismissed - decided against appellant. - Central Excise Appeal No. 53 of 2014, Central Excise Appeal No. 96, 97, 98 of 2017 - Dated:- 1-8-2017 - Hon'ble Pankaj Mithal An .....

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ch was deposited by it under protest pending the consideration of the validity of the adjudicating order. In all appeals a common substantial question of law as under is proposed to be raised:- Whether the CESTAT is justified in allowing the appeals of the respondent assessee and in permitting refund of excise duty to it under Section 11B of the Act even though the presumption of Section 12B of the Act was not successfully dislodged by the respondent assessee? The brief facts giving rise to the .....

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he respondent-assessee to ensure smooth functioning of the photo-copier machine subject to maintenance amount of Re.0.29/- per copy. In terms of the said agreement apart from other things when any defect occurred in the photo-copy drum of any machine sold, the same was removed from the machine and brought to the factory, if necessary for reconditioning. The drum so removed and brought for reconditioning on reconditioning was again installed in the machine. In context with such reconditioning and .....

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out including any further sale of any component or even the reconditioned drum. During the pendency of the above dispute the respondent assessee was forced to deposit the disputed amount of excise duty on reconditioned drums which was deposited by it but under protest. This dispute was finally settled by the CESTAT vide order dated 18.12.1996 in favour of the respondent assessee holding that the reconditioning or the installation of the photo-copier drums does not amount to manufacturing so as t .....

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the respondent assessee, were taken in appeals before the CESTAT which have been allowed by the impugned order. The Central Excise has thus preferred these appeals. We have heard Sri Krishna Agarwal, learned counsel for the appellant and Sri B. Lakshmi Narasimhan along with Sri Nishant Mishra, learned counsel for the respondent. It was argued by Sri Agarwal that under Section 12B of the Act, there is a presumption that the excise duty paid by the respondent assessee has been passed on to the buy .....

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respondent assessee under FSMA is simply maintaining the photo-copier machines sold to the customers on which excise duty was separately paid. In the service contract there is no fresh sale of any component or a photo-copier drum. The reconditioning of photo-copier drum and its re-installation is not a sale which may result in realisation of any additional excise duty. Thus, the respondent assessee could not have realised any duty from the customers. Therefore, the excise duty paid under protest .....

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e FSMA held that under the agreement the reconditioned photo-copier drums are supplied free of cost to the customers and is not a sale. It is not established that the incidence of duty has been passed over to the customers. It further records a finding that as admittedly no cost of reconditioned drum is charged by the respondent assessee from the customers, no duty stands collected from the customers on the said reconditioned items meaning thereby that as no duty has been realised the incidence .....

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ax is deposited is subsequently set aside for the reason that it is not possible for the assessee to return the amount to individual customers from whom the same has been realised. In the case at hand the Tribunal has returned a finding of fact that the respondent assessee had not passed the incidence of excise duty to the customer. This finding of fact has been recorded by the highest fact finding authority and is not ordinarily supposed to be disturbed in an appeal by the High Court hearing ap .....

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y us. Thus, we do not consider it appropriate to interfere with the finding of fact and with the order of refund passed by the Tribunal after setting aside the orders of the authorities below. Nonetheless, as Sri Agarwal has vehemently argued that the amount received under the FSMA denotes the sale which includes duty of excise, we consider it appropriate to deal with the above aspect of the matter as well. The agreement of FSMA and the terms and conditions therein are not in dispute. It provide .....

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ributed towards the cost of replacement of the reconditioned drums which under the FSMA are to be supplied free of cost. The terms and conditions of FSMA are sacrosanct and when the same are admitted to the parties, the revenue cannot be permitted to travel beyond it. The amount realised under the FSMA is a comprehensive amount for all services. It cannot be solely held to be the cost of the reconditioned photo-copier drums including any excise duty. The aforesaid replacement of the photocopier .....

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is a buyer of any goods which is not the position in the case at hand. Secondly, the price of the goods would include excise duty only when there is sale of the goods as contemplated under Section 12A of the Act. In the absence of sale the excise duty cannot be said to be the part of the contract money. In view of the above as there is apparently no buyer of reconditioned drum under the FSMA, there is no sale of any component or the photo-copier drum which may indicate that the amount so realise .....

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omponent or photo-copier drums to the customers in terms of the FSMA, there is no question of passing over the incidence of excise duty on anyone and the duty deposited under protest by the respondent assessee is out of its own pocket. Learned counsel for the revenue has relied upon a Division Bench of this court in the case of Sanat Products Ltd. Vs. Commissioner of Central Excise 2015 (323) E.L.T. 682 (All.) wherein in a similar case for refund of excise duty on the unjust enrichment, the appe .....

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