2007 (4) TMI 548 - AT - Central Excise

Refund - Unjust enrichment - Held that - The fact that excise duty was shown in the invoice is not conclusive evidence to say that the excise duty burden has been passed on to the buyers - There are several decisions, which hold that when the Chartered Accountant certifies that the duty burden has not been passed on to the buyers, the same has to be accepted. There is no unjust enrichment in the present case - appeal dismissed - decided against Revenue.

Summary

Issues:
Granting of refund claim based on dutiability of pan masala and passing on the incidence of duty to consumers.

Analysis:
The case involved an appeal by the Revenue against Order-in-Appeal No. 70/2004 regarding the granting of a refund claim to the respondent related to the dutiability of pan masala. The Department contended that the goods had to be cleared on payment of duty, which the Respondents did. However, the issue was eventually decided in favor of the Respondents, leading them to file a refund claim. The lower authorities and the Commissioner upheld the decision to grant the refund, prompting the Revenue to appeal. The grounds of appeal included the argument that the duty incidence had been passed on to consumers based on the price remaining the same before and after the levy of duty and the mention of excise duty in the invoices issued by the respondent, indicating that the duty burden had been transferred to dealers.

The Tribunal heard both sides and considered various factors. The lower authority concluded that the duty burden was borne by the respondents, supported by a certificate from a Chartered Accountant. The maintenance of the same price for the products pre and post-duty levy was crucial in determining unjust enrichment. The Tribunal found that when the respondent reduced the dealers' price, they assumed the excise duty burden themselves, despite the duty being mentioned in the invoices. The Tribunal highlighted that the mere mention of excise duty in the invoice did not definitively prove that the duty burden had been shifted to buyers. Referring to previous case laws and the certification by the Chartered Accountant, the Tribunal rejected the Revenue's appeal, affirming that there was no unjust enrichment in this case.

In the final judgment, the Tribunal pronounced that the Revenue's appeal was rejected, emphasizing that the absence of unjust enrichment was established through a thorough examination of the facts, including the price consistency pre and post-duty levy and the Chartered Accountant's certification. The decision underscored the importance of considering various factors beyond the mere mention of duty in invoices to determine the passing on of duty incidence to consumers.