TMI Blog2024 (2) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... d and thus do not have any impact and are not relevant to the present case in hand. Notification No. 2/2006-C.E. (N.T.), dated 1-3-2006, as amended, issued in exercise of the powers conferred by sub-section (1) and sub-section (2) of section 4A of the Central Excise Act, 1944 (1 of 1944) provide for the list of goods on which the payment of central excise duty has been prescribed on the basis of Retail Sale Price (MRP) along with allowable deduction towards abatement provided as the percentage of retail sale price in a Table annexed to the said notification. On perusal of the list of goods covered under the Retail Sale Price (MRP) based levy of Central Excise duty, as listed in the Table annexed to the said Notification, it is found that the goods classifiable under tariff item 3005 1000, 9018 3100, 5602 1000 being manufactured and cleared by the appellants are not at all covered therein. The payment of duty on the basis of MRP/Retail Sale Price less abatement for two months by the appellants, is not required and the same being higher, in the present case, than the duty payable as per law, the differential higher amount paid in excess is refundable. Whether the amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anuary and February, 2007. The said refund claim was forwarded to the jurisdictional Range Superintendent for verification of such a refund claim and upon receipt of their report dated 24.09.2007, stating that the claimant of the refund i.e., appellants, had not submitted upon request the detailed information for such verification of the excess Excise duty payment. Accordingly, the refund claim filed by the appellants were returned to them on 04.10.2007 as the same is incomplete, owing to the reason that it was not accompanied with supporting documents. 2.2 Subsequently, the appellants resubmitted the refund claim on 10.03.2008 and the same was verified by the jurisdictional Range Superintendent and vide their letters dated 28.3.2008 03.04.2008, it was reported that the appellants had paid Central Excise duty on their own volition without any specific instruction from the Department, even though the products manufactured and cleared is classifiable under tariff item 3005 1000, 9018 3100, 5602 1000 which were not covered under the MRP based scheme of assessment during the relevant time. It was also reported that the assessable value of the products shown in the statement append ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants vide Order-in-Appeal No. SB/65/Th-II/10 dated 25.03.2010. Having been aggrieved with the above order of the Commissioner (Appeals), the appellants had filed an appeal before the Tribunal and the matter was decided by issue of Final Order No. A/89213/17/SMA dated 21.07.2017, by remanding the matter to the original authority to pass a fresh order. The relevant paragraph of the said order is extracted below : 5. I find that as regard the time bar, since refund was admittedly filed first-time within the stipulated time as prescribed under Section 11 B. Subsequent re-submission of refund claim cannot be taken as filing of refund claim first time. The judgements relied upon by the Ld. Counsel support their claim. I hold that the refund is not time bar. As regards the unjust enrichment, though the appellant have submitted C.A. certificate, affidavit of the director, copies of credit note and the ledger of the buyers, but as per findings of both lower authorities, it is observed that they have not properly verified these documents. Even though excise duty was charged initially in the invoice but when subsequently credit notes were issued, the amount of credit note stand cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said amount was credited to the Consumer Welfare Fund in terms of proviso (d) to Section 11(B)(2) ibid, as he had concluded that the appellant had passed on the incidence of higher duty to the buyer of the goods. Being aggrieved of the above order, the appellants had filed an appeal before the Commissioner (Appeals), who vide impugned order dated 29.11.2019 had decided the case by upholding the order of the original authority dated 29.05.2019, and disposed of the appeal of the appellants. Having been aggrieved with the impugned order of the Commissioner (Appeals) dated 29.11.2019, the appellants have filed this appeal before the Tribunal. 3. Heard both sides and perused the records of the case. I have also considered the additional written submissions given in the form of paper books by learned Advocate for the appellants as well as Authorised Representative for the Revenue. 4. Brief issues for consideration in the present case before me are the following: (i) whether the appellants assessee is eligible for their claim of refund of Central Excise duty paid by them at a higher amount during January 2007 and February 2007 under Section 11B of the Central Excise Act, 1962, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise under the foregoing provisions sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the Principal Commissioner of Central Excise or Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the 1[duty of excise and interest, if any, paid on such duty] paid by the manufacturer, if he had not passed on the incidence of such 2[duty and interest, if any, paid on such duty] to any other person; (e) the 1[duty of excise and interest, if any, paid on such duty] borne by the buyer, if he had not passed on the incidence of such 2[duty and interest, if any, paid on such duty] to any other person; (f) the 1[duty of excise and interest, if any, paid on such duty] borne by any other such class of applicants as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowable deduction towards abatement provided as the percentage of retail sale price in a Table annexed to the said notification. On perusal of the list of goods covered under the Retail Sale Price (MRP) based levy of Central Excise duty, as listed in the Table annexed to the said Notification, I find that the goods classifiable under tariff item 3005 1000, 9018 3100, 5602 1000 being manufactured and cleared by the appellants are not at all covered therein. In other words, as per the legal provisions, payment of central excise duty in respect of the goods manufactured by the appellants as above, are required to be paid at the prescribed rate of excise duty, only on the assessable value and not on the basis of the MRP/Retail Sale Price less abatement. Thus payment of duty on the basis of MRP/Retail Sale Price less abatement for two months by the appellants, is not required and the same being higher, in the present case, than the duty payable as per law, the differential higher amount paid in excess is refundable. I also find that this issue has also been settled during the adjudication of the case in de novo proceedings after detailed examination of the various documents submitted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, the actual position whether treatment of said credit note is given to the account of the buyer and whether the transaction was correctly adjusted can only be seen from the buyers' ledger, which has not been properly verified. 12.2 In this context I find that in the instant case / matter, the Tribunal has categorically / specifically observed that in order to decide the applicability or otherwise of the unjust enrichment doctrine, verification of the buyers' ledger is only the solution. 12.3 In this regard I find that even after remand of the case to the original adjudicating authority with specific observations / directions to verify buyers ledgers, the appellants have failed to submit these documents (buyers ledgers') to the AA / RSA, inspite of repeated specific requests / reminders made by the AA from time to time. xx xx xx xx xx 12.3.3 In this regard I also find that the Deptt./AA has requested the appellant to provide Customers individual ledger accounts covering the period i.e. invoices issued during the months of January-2007 and February-2007 and subsequent credit/Debit notes issued in this regards, so as to ascertain facts about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pensed out the portion of such duty in his books of accounts (in case the customer is non-excisable or a trader). In either case I find that the burden of such excise duty automatically gets transferred to final customers. I therefore find that in absence of any direct and tangible proof evidencing to the contrary, one is unable to accept appellant s contention that the burden of proof was borne by him and not transferred to the actual consumer. Thus, I find that there is no case made out by the appellants in their appeal to claim for refund of higher excise duty and that it is liable to be refunded to them. I also find that on the contrary the impugned order has clearly laid down with evidence as to why the refundable amount is payable to the Consumer Welfare Fund. Further, I also find that despite a number of opportunities being given to the appellants for producing relevant documents for proving the element of unjust enrichment angle, particularly that the incidence of higher amount of excise duty having not been passed on by evidencing relevant credit notes for having credited respective amounts in the buyer s account, the same was not produced before the authorities belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,70,675/-. In the second case, the appellants had cleared the insulation valued at Rs. 3,16,275.42. 3. In the first case, the appellants subsequently noticed after issue of invoice that the actual value of spares agreed to at the time of entering into contract was only Rs. 1 lakh whereas while preparing invoice, there was a clerical error and invoice came to be prepared of Rs. 6,70,675/- for spares resulting in excess payment of duty to the extent of Rs. 94,384/- which they claimed as refund. In second case also, the actual assessable value was Rs. 8,871.67 whereas they had charged Rs. 3,16,275.42 which resulted in excess payment of Central Excise duty of Rs. 49,184.61 which was claimed as refund. 4. The lower authorities have rejected the refund claims on the ground that the appellant had issued credit note for the differential value of the spares and insulation and in view of the Larger Bench decision of the Tribunal in Grasim Industries case 2003 (153) E.L.T. 694, once credit note is issued unjust enrichment is attracted and appellants are not entitled to refund. 5. Heard both sides. Shri J.C. Patel, learned Advocate on behalf of the appellant submits that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in 2015 (323) E.L.T. 431 (Bom.). I find that the said judgement of the Hon ble High Court of Bombay is not relevant to the present case, as the facts are entirely different and thus the same ratio is not applicable to the present case. The relevant paragraphs of the above said judgement is extracted and given below for ease of reference: This Appeal of the Revenue challenges the order dated 4th December 2013 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai [2014 (303) E.L.T. 138 (Tribunal)]. 2. By the said order, the Revenue s Appeal has been dismissed. The Revenue was in appeal against the order of the Commissioner (Appeals). He held that the request of the Assessee/Respondent for refund is not hit by the bar of unjust enrichment. That bar or that principle will have no application since the Assessee had paid the amount at the time of hearing of stay application. It was a pre-condition imposed by the competent Court/Authority for grant of stay pending disposal of the main proceeding. Therefore, Section 11B of the Central Excise Act 1944 is not attracted to such a case. xx xx xx xx xx 5. Repeatedly the Hon ble Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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