2012 (9) TMI 777 - HC - Central Excise

Refund - unjust enrichment Held that - No variation in the price of the product both before and after the period the duty was paid by the assessee; and the respondent-assessee had produced a detailed Chartered Accountant s Certificate before adjudicating the authority; and in view of the fact that the Revenue failed to marshal any countervailing evidence to counteract the material produced by the assessee to disclose the passing of the duty liability to the consumer, the respondent-assessee is liable for refund

Summary

Issues:
1. Classification of product under Central Excise Act, 1944.
2. Eligibility for refund under Section 11B of the Act.
3. Passing on the duty burden to buyers.
4. Consideration of evidence for refund eligibility.

Classification of product under Central Excise Act, 1944:
The case involved a dispute over the classification of betel nut powder by the respondent-manufacturers. Initially classified under Ch. S.H. No. 2107.00, they later revised it to Ch. S.H. No. 0801.00, attracting a 'nil' rate of duty. After a series of appeals and judgments, including a Supreme Court decision upholding the revised classification, the respondent filed a refund claim for the duty paid under protest.

Eligibility for refund under Section 11B of the Act:
The Revenue rejected the refund claim, stating that the duty burden had not been passed on to buyers. However, the Deputy Commissioner held that the assessees were eligible for a refund under Section 11B but were not entitled to it due to the lack of proof of passing on the duty burden. The amount was ordered to be credited to the Consumer Welfare Fund.

Passing on the duty burden to buyers:
The Commissioner of Appeals allowed the appeal by the respondent, stating that the duty burden had been passed on to buyers/consignment agents. The appeal was allowed based on various grounds, including the payment of duty under protest, consistent pricing, and a Chartered Accountant's Certificate certifying the non-variation in wholesale prices before and after the introduction of excise duty.

Consideration of evidence for refund eligibility:
Both the Commissioner of Appeals and the CESTAT upheld the refund order, emphasizing the absence of price variation before and after duty payment, along with the detailed Chartered Accountant's Certificate provided by the assessee. The Revenue's failure to counteract the evidence presented by the assessee led to the decision in favor of the respondent.

In conclusion, the High Court dismissed the appeal, stating that the primary and appellate authorities had considered the evidence on record. The absence of better evidence or substantive invoices did not warrant a substantial question of law for consideration under Section 35G of the Act. The appeal was deemed meritless and dismissed without costs.