2011 (1) TMI 1012 - AT - Central Excise

Refund - unjust enrichment - duty paid subsequent to the clearance of the goods - Held that - In the absence of Section 28D presumption, it was the burden of the department to establishment that incidence of duty had been passed on to the buyer. From the records as find that the department has not discharged this burden. So far as the decision of Sahakari Khand Udyog Mandal Ltd. (2005 (3) TMI 116 - SUPREME COURT OF INDIA) Commissioner (Appeals) has given categorical finding that the department had not found or arrived at any conclusion regarding passing on of the incidence of duty in order to discharge this burden on it. The appellant could not produce anything new or contrary to the above. Therefore no infirmity with the concurrent finding of the lower authorities.

Summary

Issues: Appeal against dismissal of refund claim due to failure to prove non-passing of duty incidence to buyer.

Analysis:
1. Background: The case involves an appeal by the Revenue against the dismissal of their appeal by the Commissioner (Appeals) regarding the refund of duty amounting to Rs. 1,25,599/- to the importer.

2. Contentions: The department contended that even if duty is paid post-clearance of goods, the claimant must prove non-passing of duty incidence to any other person. They cited the Supreme Court's judgment in Sahakari Khand Udyog Mandal Ltd. case for support.

3. Respondent's Stand: The respondent argued that they are eligible for the refund claim on merits. They emphasized that the duty was paid after a significant period post-export, indicating non-passing of duty burden to customers. They relied on the Tribunal's decision in PSL Ltd. case.

4. Analysis of Tribunal: The Tribunal examined the records and submissions. It noted that there was no dispute regarding the eligibility for the refund claim on merits. Section 28D was referenced, highlighting the presumption of passing on duty incidence to the buyer, which is applicable at the clearance stage. However, for duty paid post-clearance, this presumption does not hold. The Tribunal emphasized that the burden was on the department to prove passing on of duty incidence, which they failed to do. The Tribunal upheld the Commissioner (Appeals)'s finding that the department did not establish passing on of duty incidence, in line with the Sahakari Khand Udyog Mandal Ltd. case.

5. Conclusion: The Tribunal upheld the impugned order, dismissing the appeal by the Revenue. The decision was based on the failure of the department to prove passing on of duty incidence, as required for the refund claim.