2011 (1) TMI 1130 - HC - Central Excise

Refund - claim rejected on the ground that appellant has failed to establish that they has not passed on duty burden upon the consumers - factual data in support of the submissions raised for refund has not been produced - record could not disclose that as to what was the portion of price related to the gallery along with the duty liability and the detail break up of the price charged for the goods prior to and after removal of gallery - burden in that regard was upon the appellants which the appellants have failed to discharge appellant has failed to establish that they has not passed on duty burden upon the consumers hence refund would have amounted to unjust enrichment Appeal being devoid of merit stands dismissed

Summary

Issues:
Appeal for refund under Section 35(H) of the Central Excise Act, 1944 against the judgment and award passed by the Customs Excise and Service Tax Appellate Tribunal, New Delhi in Appeal No. 534/2005.

Analysis:
The appellant sought a refund of the amount, which was declined on the grounds of failure to prove that duty burden was not passed on to consumers. The adjudicating authority, Commissioner (Appeals), and Tribunal all found that the necessary parameters for proving the refund of duty were not established. The Tribunal specifically noted the absence of factual data supporting the refund submissions, such as the breakdown of prices related to duty liability before and after the removal of the gallery. Without this data, the Tribunal could not accept the contentions raised by the appellant. The appeal was dismissed based on the lack of evidence on record.

In response, the appellant's counsel argued that in similar cases, refunds had been granted by the Tribunal due to the unconstitutionality of the excise levy, which was not passed on to buyers. However, the Court found that the appellant failed to establish the portion of price related to duty liability and the price breakdown before and after the gallery's removal.

The Tribunal's order highlighted the lack of factual data supporting the refund submission, leading to the conclusion that the appellants had not discharged their burden of proving that duty burden was not passed on to consumers. The Court noted that the appellant's claim that duty was paid later and not passed on was not substantiated by any admitted facts.

The Court ultimately found that the appellant had not proven that duty burden was not passed on to consumers, which would have resulted in unjust enrichment through a refund. Consequently, the Court upheld the Tribunal's decision, dismissing the Central Excise Appeal for lacking merit.