2011 (2) TMI 785 - AT - Customs

Refund claim - Interest - Unjust enrichment - Duty paid under protest - dutiability of pan masala - the price of the impugned products before the levy and after the levy remained the same is significant for deciding whether there is unjust enrichment - When the respondent reduced the dealers price, it is very clear that they have taken upon themselves the burden of excise duty - 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 - Hence, the inference of Commissioner is not correct - 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 - On going through the impugned order and also the order of the lower authority we do not find any infirmity - Held that there is no unjust enrichment in the present case - Hence, Revenue s appeal is rejected. - the respondent-assessee is eligible for the refund of the amount, they are also eligible for the interest, after 90 days from filing of the refund claim, till the date it is settled, in accordance with law.

Summary

Issues Involved:
1. Eligibility for refund of duty paid under protest.
2. Passing of duty burden to buyers and unjust enrichment.
3. Validity and sufficiency of Chartered Accountant's certificate.
4. Binding nature of previous judicial decisions.
5. Entitlement to interest on delayed refund.

Detailed Analysis:

1. Eligibility for Refund of Duty Paid Under Protest:
The respondent-assessee filed a refund claim for duty paid under protest from 25.7.1997 to 10.5.2004, following a Supreme Court judgment in their favor. The Adjudicating Authority acknowledged the eligibility for the refund but credited the amount to the Consumer Welfare Fund, citing the lack of proof that the burden was not passed to buyers. The Commissioner (Appeals) overturned this decision, allowing the refund, which led to the revenue's appeal.

2. Passing of Duty Burden to Buyers and Unjust Enrichment:
The revenue argued that the duty amount was charged in the invoices and reflected in the Profit & Loss Account, indicating that the burden was passed to buyers, invoking the principle of unjust enrichment. They cited multiple case laws supporting this view, including the Supreme Court's decision in Allied Photographics India Ltd. and the Tribunal's ruling in Xerox Modicorp. Ltd.

3. Validity and Sufficiency of Chartered Accountant's Certificate:
The respondent-assessee countered that the duty shown in invoices was a statutory requirement and did not necessarily mean the burden was passed on. They provided a Chartered Accountant's certificate, which was not disputed by the revenue with contrary evidence. The certificate stated that the pricing pattern remained unchanged, implying the duty was absorbed by the assessee. The Tribunal found the certificate valid and sufficient, as it was issued after thorough examination of records.

4. Binding Nature of Previous Judicial Decisions:
The Tribunal emphasized the binding nature of previous decisions, particularly a similar case involving the same assessee, where the refund was granted based on the Chartered Accountant's certificate. The Tribunal cited Supreme Court judgments underscoring the importance of following precedents to ensure uniformity and certainty in law.

5. Entitlement to Interest on Delayed Refund:
The respondent-assessee also sought interest on the delayed refund. The Tribunal, recognizing the eligibility for the refund, granted interest from 90 days after the filing of the refund claim until the date of settlement, in accordance with the law.

Conclusion:
The Tribunal dismissed the revenue's appeal, upholding the Commissioner (Appeals)'s decision to allow the refund. It also allowed the cross-objection filed by the respondent-assessee, granting interest on the delayed refund. The Tribunal did not delve into other submissions and case laws due to the binding precedent in the assessee's own case.