2007 (6) TMI 55 - HC - Central Excise

Refund -Assessee company claim for refund on the ground that they paid excess duty under protest - Held that assessee claim is justified and refund admissible

Summary

Issues:
1. Rebuttal of presumption of unjust enrichment under Section 12B of Central Excise Act, 1944.
2. Application of Apex Court's decision in Commissioner v. M/s. Allied Photographics India Ltd. to the case.
3. Entitlement to refund of excess Excise Duty.

Analysis:
1. The appeal involved the question of whether the Tribunal was correct in holding that the assessee successfully rebutted the presumption of unjust enrichment under Section 12B of the Central Excise Act, 1944. The Tribunal considered the evidence presented by the assessee, including certificates from a Chartered Accountant and books of account, to establish that the burden of duty had not been passed on to their buyers. The Tribunal found that the documents provided by the assessee were authentic and sufficient to rebut the presumption of unjust enrichment, similar to the case of Pride Foramer. The Tribunal concluded that the claim for cash refund of the excess Excise Duty should be allowed based on the evidence presented by the assessee.

2. Another issue raised in the appeal was whether the Tribunal correctly applied the ratio of the Apex Court's decision in Commissioner v. M/s. Allied Photographics India Ltd. to the facts of the case. The Revenue argued that the assessee failed to prove that the excess burden had not been passed on to the buyers. However, the Tribunal found that the price increase during the disputed period was reflected in the commercial invoices, and the Chartered Accountant's certificates and books of account supported the assessee's claim that the excess duty was not passed on to the customers. The Tribunal held that the Revenue did not demonstrate that the price increase was not reflected in the statutory invoices, and therefore, the Apex Court's decision was not correctly applied by the department.

3. The final issue centered around the entitlement of the assessee to a refund of the excess Excise Duty paid under protest. The Tribunal's factual finding revealed that only 20% of duty was collected from the customers, while the remaining 10% was not passed on to them. This finding was supported by the certificates of the Chartered Accountant and the books of account for the disputed period. The Tribunal concluded that the reasons given for allowing the refund were based on valid evidence and materials, without any error or legal infirmity. Consequently, the High Court dismissed the appeal, stating that no substantial questions of law arose for consideration, and upheld the Tribunal's decision to allow the claim for cash refund of the excess Excise Duty.