2011 (2) TMI 416 - HC - Central Excise

Refund - Excess payment of duty - principal of unjust enrichment - appellant that by mistake excess excise duty was paid by the appellant by adding machining charges and packing and forwarding charges on the sale value. In fact excise duty was payable only on sale value which was Rs. 30, 50, 000/-. By mistake the appellant has miscalculated the sale value by adding cost of machining of Rs. 5, 01, 760/- and by adding the cost of packing and forwarding of Rs. 15, 052.80/- in a sale value of Rs. 30, 50, 000/- - Held that - Nowhere it was mentioned in the show cause notice given by the Deputy Commissioner Central Excise Division Dhanbad dated 5th February 2003 that whether the purchaser of the appellant has availed any MODVAT/CENVAT credit. - Moreover the Bharat Heavy Electricals Limited (BHEL) is not a manufacturer of the goods and therefore no question of availment of MODVAT/CENVAT credit whatsoever arises. This aspect of the matter has also not been properly appreciated by the Tribunal. - Refund of excess payment of duty allowed.

Summary

Issues:
1. Claim for refund of excess excise duty paid.
2. Proper appreciation of certificate by Chartered Accountant.
3. Rebuttal of presumption under Section 11B of the Act, 1944.
4. Denial of refund claim based on MODVAT/CENVAT credit availed by the customer.
5. Justification of passing on the burden of duty to the buyer.

Analysis:

1. The appellant filed an appeal against the rejection of a refund claim for excess excise duty paid, which was confirmed by the Commissioner (Appeals) and the Customs, Excise and Service Tax Appellate Tribunal. The appellant contended that the excess duty was paid due to a miscalculation in the sale value, including machining and forwarding charges. The claim for refund was supported by a Chartered Accountant's certificate confirming that the duty incidence was not passed on to the customer.

2. The appellant argued that the Deputy Commissioner and the appellate authorities failed to appreciate the Chartered Accountant's certificate properly. Despite the certificate indicating that the duty was not passed on to the customer, the authorities upheld the rejection of the refund claim. The Tribunal also did not consider a previous decision in a similar case involving the appellant, where the duty incidence issue was resolved in favor of the appellant.

3. The respondent contended that there is a presumption under Section 11B of the Act that the duty incidence is passed on to the customer. The appellant failed to rebut this presumption. The respondent emphasized the consistent findings of the authorities and the Tribunal, suggesting that the Court should not interfere with these factual determinations.

4. The Tribunal's reasoning for dismissing the appeal included the consideration of MODVAT/CENVAT credit availed by the customer, which was not mentioned in the show cause notice. The appellant argued that the buyer, a government undertaking, was not eligible for such credits as they were not a manufacturer. The Tribunal's reliance on this ground was deemed unjustified, leading to the Court's decision to set aside the Tribunal's order and remand the matter for fresh consideration.

5. The Court ultimately quashed the Tribunal's order and remanded the case for a fresh hearing, directing the Tribunal to consider the matter on its merits without being influenced by the previous decision. The Tax Appeal was allowed and disposed of based on the observations and directions provided in the judgment.