TMI Blog2018 (7) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of this Tribunal involving similar circumstances in Sh. Baidyanath Ayurved Bhavan case [2008 (8) TMI 324 - CESTAT, MUMBAI], where the Tribunal has considered the fact that even though on the labels, it was clearly mentioned that the price does not include Central Excise duty, but observed that the appellant could not establish that the burden of duty had not been passed on to others. In the present case, on the contrary, the label/laminate produced by the appellant shows that the MRP is inclusive of all taxes. Thus, the appellant could not establish that the excess duty paid by them during the relevant period has not been recovered from the customers, by not including the same in the MRP of the goods. The copies of balance sheet pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentative Sh. B.M. Jyotishi (G.M.) for the appellant has submitted that the Ld. Commissioner (Appeals) has allowed the Revenue s appeal observing that the description of the product shown in the Excise invoices and that in the commercial invoices issued from the depots are different. Consequently, the Ld. Commissioner (Appeals) has held that the appellant could not produce sufficient evidence to establish that the burden of excise duty claimed as refund, has not been passed on to others. It is his contention that the entire quantity of the manufactured goods are cleared to depots from where it is ultimately sold to the customers. The M.R.P. declared on the jar/ pouches had remained same before and after payment of the excise duty, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which is inclusive of all taxes. Thus, the appellant had passed on the burden of duty to the customers to whom the product was ultimately sold as MRP shown on the laminates includes all taxes. In support he has referred to the judgment of this Tribunal in the case of Sh. Baidyanath Ayurved Bhavan Ltd. vs CCE, Nagpur 2009 (238) ELT 680 (Tri.-Mum). 5. Heard both the sides and perused the records. 6. I find that the only issue to be determined in the present appeal is whether the appellant had passed on the burden to the customers of the amount claimed by them as refund. It is not in dispute that the product is subjected to MRP based assessment under Section 4A of CEA, 1944, during the relevant period. From the records, I find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the illustrative commercial invoice contains a remark as aforesaid regarding non-recovery of excise duty. Further, the price circular effective from 15-11-99 carries a remark as under : (A) The above prices are inclusive of all taxes, but does not include Central Excise Duty. The above facts are not disputed. But the crux of the matter is that the appellants have failed to prove that the incidence of duty is not included in the MRP. The appellants did not produce, either before us or before the lower authorities below, the empty packing of the containers for the relevant period in which goods have been sold and which bear the MRP price to find out whether the price printed on the container is MRP on which they have paid the duty as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Customs reported in 2005 (181) E.L.T. 328 (S.C.) has held that the doctrine of unjust enrichment is that no person can be allowed to enrich inequitably at the expense of another. A right of recovery under the doctrine of unjust enrichment arises where retention of a benefit is considered contrary to justice or against equity. The Hon ble Supreme Court has further held that before claiming a relief of refund, it is necessary for the petitioner/appellant to show that he has paid the amount for which relief is sought and that he has not passed on the burden on consumers. 9 . In the case laws cited and relied upon by the appellants in para 5.1 above, the Tribunal has examined the issue, where the goods were assessed to duty under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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