2010 (8) TMI 910 - AT - Central Excise

Summary

Issues Involved:
1. Whether the provisions of unjust enrichment are attracted when the duty is paid under protest.
2. Whether the appellants have been able to rebut the presumption of unjust enrichment by way of documents put forth by them.

Summary:

Issue 1: Whether the provisions of unjust enrichment are attracted when the duty is paid under protest.

The appellants were engaged in processing man-made fabrics and were working under a compounded levy scheme u/s 3A of the Central Excise Act, 1944. They paid duty based on the annual capacity of production. An order dated 8-3-2000, which included the gallery attached to the stenter as one of the chambers, was challenged and set aside by the Tribunal on 4-1-2001. Consequently, the appellants filed for a refund of Rs. 14,22,313/- paid under the said order. The Assistant Commissioner sanctioned part of the refund but credited it to the Consumer Welfare Fund, invoking the principle of unjust enrichment. The Commissioner (Appeals) upheld this decision, leading to the present appeal.

Issue 2: Whether the appellants have been able to rebut the presumption of unjust enrichment by way of documents put forth by them.

The appellants argued that the processing charges did not include the duty element and that the duty was paid in instalments under the compounded levy scheme, irrespective of actual production. They contended that their account books and a certificate from a Cost Accountant supported this claim. However, the Jt. CDR argued that the appellants failed to provide audited accounts or a balance sheet to substantiate their claim. The Tribunal noted that the Commissioner (Appeals) was aware of the issues and had formulated them clearly. It was observed that the appellants did not produce sufficient evidence to prove that the duty element was not passed on to the consumers. The Tribunal referenced the decision in Philips Electronics India Ltd., which held that uniformity of price does not prove non-inclusion of the duty element.

The Tribunal also noted that the appellants did not produce a balance sheet or credible evidence to support their claim. The certificate from the Cost Accountant was deemed unreliable as it was based on information provided by the appellants without independent verification. The Tribunal cited the decision in Shivagrico Implements Ltd., which held that the bar of unjust enrichment applies even under the compounded levy scheme.

Conclusion:

The Tribunal found no reason to interfere with the impugned order and dismissed the appeal, upholding the application of the principle of unjust enrichment and the decision to credit the refund to the Consumer Welfare Fund.