TMI Blog2003 (11) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... goods (polyester staple fibre) manufactured out of duty paid Purified Terephathelic Acid (PTA). They filed refund claim of Rs. 23,81,776.35 on 22-4-1997. The Assistant Commissioner rejected their claim vide Order-in-Original dated 31-5-2000 on the ground of unjust enrichment for having passed on burden of duty to the customers. The Commissioner (Appeals) has affirmed that order. 3.The learned Counsel for the appellant has contended that the doctrine of unjust enrichment could not be invoked for rejecting refund claim of the appellant on the ground, - (i) the invoices issued by the appellant did not indicate the duty elements separately as composite price was recorded therein (ii) there had been no increase of sale price even after paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is the very negation of economic justice. Assessee in such a case, cannot be allowed to make a fortune. The doctrine of unjust enrichment is a just and salutary doctrine. No one can be allowed to collect the duty from both ends. In other words, he cannot collect duty from purchaser at one end and also claim refund of the same from the Government on the ground that it had been earlier wrongly collected from him contrary to law, by the Government. The power by the Court cannot be exercised in his favour for unjustly enriching him. 6.Section 12B of the Act raises a presumption of law that until the contrary is proved, every person who has paid duty of excise on any goods, shall be deemed to have passed on the full incidence of such duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. But to say that they sold goods in the market at loss after decreasing the prices, would not be legally justiciable also. 8.Ordinarily, no manufacture will sell his product at less than the cost price plus duty. He could not survive in business, if he does so. Only in a case distress sales, such a thing is understandable, but such sales are not a normal feature and as such cannot constitute the basis for judging the non-passing of duty incidence to the buyers by the manufacturer. Similarly, no one will ordinarily pass on less excise duty than what is exigible and payable by him under the law. The manufacturer may dip into his profit but would not ordinarily further dip in the excise duty component. He will do so in case of distress sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate. In other words, he has nowhere stated that he had issued certificate after examining the cost date and other relevant documents of the appellants. The certificate, in our view, appears to have been procured from the Chartered Accountant by the appellants to create evidence. Learned Counsel has not doubt, referred to two charts - one captioned as Table No. 1 - the effective rate of excise duty on man-made staple fibre and other as Table No. 6, average price quotation of the price list on the staple fibre, to contend that there was decrease in the market price of the goods manufactured by the appellants, but these tables have not been certified to be correct by any authorised representative of the appellants. These are photocopi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal being hit by doctrine of unjust enrichment. 10.The ratio of law laid down in none of the case referred by the learned Counsel is attracted to the facts of the present case. In the first case - Infar (India) Ltd., there was sufficient evidence to prove that incidence of duty was not passed on by the claimants to the buyers. The product was sold by them strictly as per Drug Laws at the pre-determined price according to the price list prescribed by law. Keeping in view the evidence available in that case, the Tribunal allowed the refund. Similarly, in the second case C.C.E., Delhi v. Metro Tyres, it has been only observed that since the assessee's invoice during the material time showed composite price, and duty was not indicated sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what grounds the appeal of the Revenue was dismissed as the issue of classification was also involved therein besides of the refund claim. It cannot be speculated that the Apex Court in that case C.C., Delhi v. Metro Tyres (supra) in the absence of any other evidence except the invoices showing composite price, approved the non-applicability of the doctrine of unjust enrichment to the refund claim of the petitioner therein. 12.In the third case - C.C.E., Chandigarh v. Pawan Tyres, the observations of the Tribunal that refund could not be denied on account of unjust enrichment when composite price was shown in the invoice, had been based on the view expressed by the Tribunal in C.C.E., Chandigarh v. Metro Tyres (supra), the case which was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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