TMI Blog2019 (6) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... le High Court of Bombay in this regard, have verified the evidence made available to them by appellants and have come to the conclusion rightly that the appellants could not prove that the incidence of duty has not been passed on to the buyers and was borne by them. Appeal dismissed - decided against appellant. - E/1275/2009 - A/86156/2019 - Dated:- 21-6-2019 - Dr. D.M. Misra, Member (Judicial) and Shri P Anjani Kumar, Member (Technical) Shri Vipin Kumar Jain, Sr. Advocate for Appellant Shri Sanjay Hasija, Supdt. (A.R.) for Respondent ORDER The Appellants, M/s. Kores India Ltd, have filed a refund claim of ₹ 63,90,541, on finalization of provisional assessment for the period 1992-1997, involving deduction of various post manufacturing expenses/ abatement from the wholesale sale price. Assistant Commissioner allowed its claim for refund but transferred the amount to the Consumer Welfare Fund holding that appellant has passed on the incidence of duty to its customers. On an appeal, Commissioner (Appeals) modified the order and held that the refund which is relatable to the depot sales was not liable to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty from the Customers; reference to the duty paid on the goods in question appears only in the excise invoice which is a document issued from the factory to the company s own depot; none of the excise invoices issued by the Appellant show that any amount of duty was to be recovered from the customer; Section 12 A declaration was not made by the Appellant for the simple reason that no part of excise duty was being charged to the customer apart from the price. Further, Commissioner (Appeals) has gone by an entirely different approach and concluded that the sale price has to be deemed to be including the duty by virtue of the presumption in Section 12B, no refund was admissible. The presumption under Section 12B is a rebuttable in the light of the specific directions of the Hon ble Bombay High Court and authorities below were duty bound to examine the additional evidence produced by the Appellant by way of Cost Accountant s certificates. 2.1. Learned counsel further submits that the order of the Commissioner (Appeals) makes no effort to deal with the submissions made by the Appellant (paras 10 to 13 of written submissions dated 13.02.2008). Cost Accountants certificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of duty. In the first case, the Appellant receives the amount which was part of its profit but foregone initially on account of excess payment whereas in the latter case, foregoes a part of its profit at a later stage since, initially the amount of duty that was lesser. In either case, the difference on account of excess payment of duty or short payment is borne by the Appellant alone and no part of it is passed on to the customers. 2.3. Counsel for the appellant submits that under the doctrine of unjust enrichment, there is a bar in recovering the amount of duty from the customers as well as claiming the same as refund once again from the Government, resulting in unjustly enriching oneself. The bar therefore is on unjust enrichment and not applicable to all kinds of refund. In the present case, the duty that is paid excess by the Appellant is on its own account, which is subsequently claimed by as refund. The question of Appellant becoming unjustly enriched does not therefore, arise. Selling price is purely market driven and is not just cost plus profit as established from the Cost Accountant certificates. The said certificate clearly indicates that the prici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be said that the duty has not been passed on only because prices are constant; it only indicates that profit margin may go up or down; CA also confirms that there is variation in profit margin. Hon ble Supreme Court, in the case of South India Alloy Industries vs. CCE (reported in 1997 (94) ELT 457 (SC), held that the onus was on the appellant to show that the price did not include the excise duty; in the absence of any such effort made by the appellant, it has to be assumed that the appellant has passed on the excise duty to the purchaser. Hon ble Supreme Court dismissed the party s appeal in the case of Sanat Products Ltd Vs CCE (reported in 2015 (323) ELT 682 (All) which relied upon the decision of Supreme Court s decision in the case of CCE M-II Vs Allied Photographic India Ltd 2004 (166) E.L.T. 3 (S.C.), wherein it was held that Before concluding, we may state that uniformity in price before and after the assessment does not lead to the inevitable conclusion that incidence of duty has not been passed on to the buyer as such uniformity may be due to various factors. Hence, even on merits, the respondents has failed to make out a case for refund . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificate from the C.A. states that incidence of duty has not been passed on to the customers, merely because the amount is shown as expenditure under the Profit and Loss account, it does not establish that it has been recovered as duty from the customers. We do not accept reliance on these because in each case, the C.A. certificate must elaborate on how it arrived at the conclusion that it did. It must be explained as to how the duty, incidence was not passed on to the buyers by showing cost structure, etc. Above all we do not see from the records whether any C.A. certificate was produced. The orders of lower authorities have also not discussed this aspect . 4. Heard both sides and perused the records of the same. The brief issue to be decided in the instant case is as to whether the refund claim is hit by unjust enrichment and as to whether the appellants have shown enough evidence so as to satisfy that the incidence of duty has been borne by them and has not been passed on to the customers? We find that the appellants main contention is that they have sold their products at a price driven by market forces, independent of the central excise duties paid. Regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been passed on to the buyer. The admitted position is that they had no occasion to revisit the price. When the price of ₹ 74/-, which included an element of Excise duty of ₹ 11.25 as per own working remains undisturbed, the presumption of section 12B of the Act operated against them and refund would not be admissible to them. Similarly in Excise invoice no. 2175 dated 29.03.97, the appellants had charged duty of ₹ 2918.50 @ 25% on Plastocarb 1250 Film Carbon Black on the assessable value of ₹ 11,674/-. The Depot sale price of the product was ₹ 160/- and the assessable value as per the price declaration dated 3.2.97 was worked out after deduction of ₹ 1.08 of abatements and ₹ 29.18 of Excise duty. The accompanying sales invoice shows that the product was sold from the Depot @ ₹ 160/- and the presumption of law is that the entire duty of ₹ 29.18 had been recovered from the buyer as per their own working. Ongoing through the sample invoices, we find that the the conclusion drawn by the lower authorities are correct. 4.2. The appellants have relied upon the cost accountant certificate dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above have not been examined by the authorities below, we do not find merit in the contention of the respondent that this Court should not interfere under Article 136 of the Constitution in view of the concurrent finding of fact. Also Hon ble Supreme Court in the case Sahakari Khand Udyog Ltd. 2005 (181) ELT 328 (SC) have observed that 48. From the above discussion, it is clear that the doctrine of unjust enrichment is based on equity and has been accepted and applied in several cases. In our opinion, therefore, irrespective of applicability of Section 11B of the Act, the doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. Section 11B of the Act or similar provision merely gives legislative recognition to the doctrine. That, however, does not mean that in absence of statutory provision, a person can claim or retain undue benefit. 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, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss. 4.4. We also find that var ..... X X X X Extracts X X X X X X X X Extracts X X X X
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