TMI Blog2002 (7) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... d consume the same captively for the purpose of manufacture of Drip Irrigation Systems. A dispute had arisen in the past, as to whether the plastic tubes/pipes as parts of Drip Irrigation System could also be classified under CET Heading 84.24 as claimed by the assessee and whether the benefit of exemption under Notification No. 56/95-C.E., dated 16-3-95 was available to the plastic tubes cleared for captive consumption. That dispute ultimately came up before this Tribunal and, by Final Order No. 1885/99, dated 30-7-99, this Tribunal decided the issue in favour of the assessee. However, by that time, the assessee had already deposited 'under protest' a total amount of duty of Rs. 92,02,446/- on plastic tubes for the period October '95 to Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenged the above finding of the Commissioner (Appeals) on the ground that the price of a product was influenced by various factors, apart from the Excise Duty element, and that the price can be kept constant by reducing the profit margin. The lower appellate authority, further, found from the relevant invoices that the assessee had not collected any Excise Duty from their customers. It accepted the Chartered Accountant's certificates produced by the party, which certified that the Excise Duty paid to Govt. was being charged to the Profit and Loss Account of the company. The lower appellate authority relied also on the Tribunal's decision in the case of CCE v. Metro Tyres Ltd., 1995 (80) E.L.T. 410 (T). The appellant has sought to disting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Accountant's certificates, one of which reads as under :- "TO WHOMSOEVER IT MAY CONCERN This is to certify that M/s. Elgi Ultra Industries Limited, India House, Trichy Road, Coimbatore - 641 018 has not charged or collected Excise Duty on the sale of HDPE and LDPE Pipes sold under Drip Irrigation System. I further certify that the price of the HDPE and LDPE Pipes remain unaltered inspite of the order of the Commissioner of Central Excise to charge excise duty which is paid by the company out of its own sources under protest. (emphasis supplied) ---As per the Books and information furnished to me." K. SELVAM CHARTERED ACCOUNTANT" The other certificate is as under :- "TO WHOMSOEVER IT MAY CONCERN T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the financial years prior to 1997-98. The above notes do not seem to support, or form the basis of, the Chartered Accountant's certificates inasmuch as, according to the notes, it was the Excise Duty on Drip Irrigation System (final product) that was paid under protest and charged to Profit and Loss Account and not the Excise Duty on plastic tubes as certified by the C.As. It is significant to note that the respondents themselves have treated the plastic tubes as different from the Drip Irrigation System by classifying them in their invoices under different CET sub-headings (8424.90 and 8424.10). No cogent evidence appears to have been placed on record to justify the Chartered Accountant's certification that the Excise Duty was paid o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference to the date of commencement of the period of refund claim, they cannot successfully claim support from the cited case law. 7.The decision of the Hon'ble Supreme Court in the case of Solar Pesticides (supra) is that the principle of unjust enrichment is applicable to cases of captive consumption also. We note that the ratio of this decision referring to refund claims under Section 27(1) of the Customs Act is equally applicable to refund claims under Section 11B of the Central Excise Act. It was held by the Apex Court that the expression "incidence of duty being passed on to another person" would take within its ambit not only passing of the duty incidence directly to another person but also cases where it is passed on indirectly. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other words, the burden of proof against the bar of unjust enrichment has not been successfully discharged by the respondents in this case and the presumption of law (vide Section 12B of the Central Excise Act) remains unrebutted that the assessee has passed on the burden of duty on the plastic tubes indirectly to their customers. Consequently, their refund claim is hit by the bar of unjust enrichment. In the result, we have to set aside the order of the lower appellate authority and restore that of the original authority. We do so. The appeal of the Revenue is allowed. Sd/- (P.G. Chacko)Member (J) [Order per : Jeet8. Ram Kait [agreeing with Member (J) P.G. Chacko]. - I have carefully gone through the order recorded by my learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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