2010 (6) TMI 352 - AT - Central Excise

Refund - unjust enrichment - assessee paid duty on products without availing the benefit of Notification - Held that - duty requires to be indicated in the invoices in terms of Section 12A of the Central Excise Act 1944 - appellants have collected the full amount as duty without taking into account Notification No. 21/02 - passing the entire duty burden to their customers by indicating the amount in the invoices - refund claim is clearly hit by unjust enrichment - Appeal is rejected

Summary

Issues involved:
Appeal against rejection of refund claim based on Notification No. 21/2002-C.E. for concessional duty rate; Applicability of exemption on clearances from refineries in North East; Bar of unjust enrichment on refund claim.

Analysis:
The appeal before the Appellate Tribunal CESTAT, Kolkata was against the rejection of a refund claim by the original authority based on Notification No. 21/2002-C.E. which provided for a concessional rate of duty. The case involved the clearance of petroleum products from a refinery to a warehouse without duty payment, subsequent sale to another entity, and the applicability of the exemption on such clearances. The Tribunal noted that the exemption under Notification No. 21/2002 was meant to incentivize refineries in the North East by applying 50% of the otherwise applicable duty rates. The appellant, in this case, argued that the concessional rate should apply to all clearances from the specified refineries, even if duty was initially collected at the full rate. However, the Tribunal held that the duty must be indicated in invoices as per the Central Excise Act, and the subsequent issuance of debit notes to pass on incentives did not negate the fact that the full duty amount was collected initially without considering the exemption.

The Tribunal observed that while the sharing of sale proceeds between entities involved in the transaction might be an internal matter, the appellant had clearly passed on the entire duty burden to their dealers by indicating the full amount in the invoices. This led to a finding of unjust enrichment, as the appellant had collected the duty without availing the benefit of the concessional rate under Notification No. 21/2002. Consequently, the Tribunal upheld the rejection of the refund claim on the grounds of unjust enrichment, despite the eligibility of the concessional rate for clearances by the appellant as decided by the Commissioner (Appeals).

In conclusion, the Tribunal found no error in the order of the Commissioner (Appeals) and rejected the appeal, emphasizing that the refund claim was rightfully denied due to the unjust enrichment resulting from the collection of duty without considering the applicable exemption.