TMI Blog2024 (1) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... his case. The CA Certificate alone is not sufficient to conclude that 'unjust enrichment' is applicable in this case or not. This view has been held in the case of COMMISSIONER OF CUSTOMS (EXPORTS) CUSTOM HOUSE, VERSUS 1. M/S. BPL LTD., 2. CUSTOMS EXCISE SERVICE TAX APPELLATE TRIBUNAL [ 2010 (7) TMI 66 - MADRAS HIGH COURT ] it was held that Inasmuch as the Tribunal has merely relied upon the certificate of the Chartered Accountant and in order to give sufficient opportunity to first respondent while answering the question of law in favour of the revenue, the order passed by the Tribunal is hereby set aside and the matter is remitted back to the Tribunal for a fresh consideration of the appeal filed before it. The first re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantiate their claim that the incidence of duty has not been passed on to the customers. Accordingly, he prays that the appeal is required to be rejected on the ground of 'unjust enrichment'. 3. I find that the Appellant has cleared the goods to their related person who captively consumed the goods in the manufacture of their finished goods. As per the decision of the Hon ble Supreme Court in the case of Union of India Vs. Solar Pesticides Pvt. Ltd. reported in 2000 (116) ELT 401 (SC), unjust enrichment clause applies to the cases of captive consumption also. Accordingly, the Appellant was asked to provide evidence that there was no unjust enrichment in this case. 4. I observe that during the year 2014-15, the Appellant c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence showing that the incidence of duty has been passed on to the customers and if it is found that the whole or any part of duty paid by the applicant is refundable is not hit by the provisions of unjust enrichment which means that the incidence of duty has not been passed on to the customer, Order is made in favor of the applicant. The law does not permit unjust enrichments and in such cases the refundable amount is credited to the Consumer Welfare Fund as per Central excise Act, 1944. The burden of proof that the incidence of duty has not been passed on to the customer is on the manufacturer. In this case, I find that the appellant has never produced any documents/evidence before any central excise authority showing that the incidence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y element has not been passed on by the way of non-including the same in the cost of production of final product. Therefore, in absence of any cogent evidence, I do not find any reason to interfere with the impugned order. I also find that in all the cases cited by the appellant, there is no dispute regarding compliance of mandatory condition that the refund application under section 11 B of Central Excise Act, 1944, shall be accompanied by such documentary or other evidence as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person. So, the facts of all the cases a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson. 9. Therefore, considering the above said provisions and applying the same to the facts on hand, we are of the opinion that the Tribunal has committed an error in merely relying upon the certificate produced by the first respondent without taking into consideration of the fact that no evidence has been produced for considering the claim of refund. The Tribunal also relied upon the Judgment of Commissioner of C.Ex., Coimbatore v. Flow Tech Power reported in 2006 (202) E.L.T. 404 (Mad). The said Judgment is not applicable to the present case on hand and the Tribunal has wrongly relied upon the said Judgment. This Court in the said Judgment has clearly held that the certificate issued by the Chartered Accountant along with other evi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
