2007 (3) TMI 518 - AT - Central Excise

Summary

Issues:
1. Challenge to order upholding refund credited to Consumer Welfare Fund.
2. Application for refund based on duty paid on galleries.
3. Finding of unjust enrichment.
4. Invocation of doctrine of unjust enrichment.
5. Absence of provisional assessment and unjust enrichment.
6. Arguments regarding payment of duty under protest.
7. Procedure under Rule 96ZQ and application for refund under Section 11B.
8. Burden of proof under Section 12B regarding passing on duty burden.

Analysis:
1. The appellant challenged the order upholding the refund credited to the Consumer Welfare Fund. The initial provisional capacity determination was finalized based on the decision of the Supreme Court regarding galleries not being included in chambers for capacity determination. The appellant filed a refund claim for duty paid on galleries, which was contested due to lack of original documents and the possibility of unjust enrichment.

2. The Assistant Commissioner sanctioned the refund claim but found the appellant failed to prove that the duty incidence was not passed on to customers. The Appellate Commissioner invoked the doctrine of unjust enrichment based on the Supreme Court decision and upheld the order to credit the refund amount to the Consumer Welfare Fund.

3. The appellant argued against unjust enrichment, citing the absence of provisional assessment and reliance on specific court judgments. However, the Department's representative countered, stating that the doctrine of unjust enrichment applied regardless of protest payments, as per relevant court decisions.

4. The procedure under Rule 96ZQ required duty payment based on annual production capacity, and the appellant's refund claim under Section 11B was governed by the doctrine of unjust enrichment. The burden of proof under Section 12B was highlighted to establish the passing on of duty burden, leading to the dismissal of the appeal.

5. The contention regarding passing on the duty burden due to earlier show cause notices and payment under protest was examined in light of Section 12B. The authorities found no evidence to support that the duty paid on galleries was not passed on to buyers, leading to the dismissal of the appeal based on lack of grounds for interference.