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TMI Blog2024 (8) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Act, 1944. Aggrieved by the said order, the appellants filed appeal before Commissioner (Appeals) who vide the order impugned herein rejected the appeal filed by the appellants. Hence the present appeal. 3 Smt. Radhika Chandrasekar, learned Advocate appeared for the appellants and Shri M. Selvakumar, learned Authorized Representative appeared for the respondent. 3.1 The Ld. Counsel for the appellant submitted that the appellant as per the contract with the principal contractor M/s. Siemens (India) Ltd, Mumbai, had manufactured Railway Carriage Fans falling under Chapter 84 of the Central Excise Tariff Act, 1985 and cleared the goods to Integral Coach Factory, Chennai for Mumbai Railway Vikas project (MRVC project) of the Ministry of Railways under World Bank funding. The appellant had initially paid the excise duty under abundant caution under protest but later filed 3 refund claims on 20.08.2010 for an amount of Rs.30,34,895/- (Rs.21,46,723/-, Rs.7,82,102/- & Rs.1,06,070/-) seeking refund of excise duty paid on removal of the final product since the product could be cleared without payment of duty in terms of Notification No.108/1995 dated 28.08.1995 as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was eligible for the duty exemption under Notification No.108/1995 dated 28.08.1995 as the MRVC project was funded by the World Bank. In fact, the amount claimed as refund was credited to the Consumer Welfare Fund under sec. 12C of the Central Excise Act, 1944, by the Proper Officer. It was the view of the Proper Officer that the appellant was not eligible for the refund claims on the ground that the same was hit by the bar of unjust enrichment as the appellant did not file any documentary proof to the effect that the appellant has not passed on the full incidence of duty to M/s. Siemens (India) Ltd at any point of time and that as per Section 12B of the Central Excise Act, 1944, any person who has paid the excise duty shall unless the contrary is proved, be deemed to have passed on the full incidence of such duty to the buyer of such goods. The appellant on the other hand is of the opinion that they are due for receiving the refund since M/s. Siemens (India) Ltd, the principal contractor, vide letter dated 12.06.2009 had informed that the duty already collected by the Appellant would be recovered by the principal contractor. The principal contractor had withheld payment which e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on by the licensee to the next purchaser of the Agricultural Produce in respect whereof such fee was levied and collected". The validity of the said provison was called in question in this case. This Court negatived the challenge holding that the primary purpose of the said section was to prevent refund of licence fee to dealers who have already passed on the burden of such fee to purchasers and who want to unjustly enrich themselves by obtaining refund from the market committee. The said provision, it was held, recognised that the consumer public who have borne the ultimate burden are the persons really entitled to refund and since the market committee represents their interests, it is entitled to retain the amount. It was pointed out that the provision for retention by market committee had to be made because of the practical impossibility of tracing the individual purchasers and consumers who have ultimately borne the burden. It was held that it was "really a law returning to the public what it has taken from the public, by enabing the Committee to utilise the amount for the performance of services required of it under the Act. Instead of allowing middlemen to profiteer by illg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sited towards the Fund was to be utilised for the development of sugarcane. If it is not possible to identify the persons on whom had the burden been placed for payment towards the Fund, the amount of the Fund can be utilised by the Government for the purpose for which the Fund was created, namely, development of sugarcane. There is no question of refunding the amount to the respondents who had not eventually paid the amount towards the Fund. Doing so would virtually amount to allow the respondents unjust enrichment." 46. We express our respectful agreement with the above approach. 47. The same approach was adopted in the case of entry tax in Indian Aluminium Company Ltd. v. Thane Municipal Corporation [1991 (55) E.L.T. 454 (SC) = 1992 Suppl. (1) S.C.R. 480], Indian Oil Corporation v. Municipal Corporation, Jallandhar [1993 (1) S.C.C. 333] and in Entry Tax Officer v. Chandanmal Champalal [1994 (4) S.C.C. 460]. *****. *****. ***** 73. Sub-section (2), it may be noted, expressly makes the said provision applicable to duty of customs and duties of excise on goods. This fact was also recognised by the Federal Court in The Province of Madras v. M/s. Boddu Paidanna & Sons [1942 F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the appellant agrees that the duty paid by mistake to government had been passed on to the principal contractor under protest. Its their argument that the principal contractor has later withheld payment which exceeds the amount claimed as refund in order to adjust the excise duty already paid to the appellant. No factual proof of the same has been given or placed before the proper officer nor has it been shown that the duty paid by the principal contractor for whom the amount is an expense in turn have not passed it on to someone else or have not taken credit of the same and set it of against duties to be paid. This could have been done by way of a Chartered Accountant certificate as is in vogue in the case of certain refunds under a well-defined procedure. The averment made by the counsel that the Commissioner (Appeals) has acknowledged that an amount which exceeds the refund claim was withheld by the principal contractor is not correct. The Commissioner (Appeals) only refers to certain letters as contended by the appellant and rejects them and rejects them as not being upto standard (of proof). In fact, the impugned order categorically mentions that the unjust enrichment hurdl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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