2013 (4) TMI 75 - AT - Central Excise

Refund - unjust enrichment - duty paid under protest - Demand due to non-inclusion of advertisement expense incurred in the assessable value - Held that - From the annexure in the balance sheet when read together it becomes quite clear that the amounts paid by the respondent in 1993 and 1994 were included in the balance sheets for the corresponding years and subsequently without refund was received it was deducted. Interest received also has been shown as an income during the year. This shows very clearly that the respondent had treated the amount as a disputed one. The amount was not collected as part of the duty by showing in the invoice but was paid under protest during the course of investigation and after the investigation would show that the appellants could not have collected this amount from the customers. This aspect along with the review of the balance sheet and the chartered accountant s certificate taken together would show that that respondent has discharged the obligation cast on him to shows that there was no unjust enrichment in this case. Therefore it becomes a rebuttable evidence and once this much evidence has been produced it was for the Revenue to come out with any evidence to show this claim to be false - refund allowed - decided against the revenue.

Summary

Issues:
1. Whether the duty liability suffered by the respondents has been passed on by them, leading to unjust enrichment.

Analysis:
The case involved a dispute regarding the inclusion of advertisement expenses incurred by an Advertising Agency in the assessable value of Non-Alcoholic Beverages Based (NABB) manufactured by the respondent. The department issued a show cause notice for recovery of alleged non-included expenses, which was contested by the respondent. The matter went through various stages of adjudication, including orders by CESTAT, High Court, and Apex Court, leading to refund claims and subsequent challenges by the department.

Unjust Enrichment:
The main issue revolved around unjust enrichment, with the department contending that the duty liability had been passed on by the respondents. The Commissioner (Appeals) questioned the respondents' ability to prove that the duty amount was not included in the disputed liability. The respondents argued that they had not recovered the amount from buyers, as evident from their balance sheets and chartered accountant's certificate. They maintained that the amount was paid under protest and treated as a disputed liability, not collected from customers.

Evidence and Rebuttal:
The Tribunal analyzed the chartered accountant's certificate, balance sheets, and statements provided by the respondents. It was observed that the amounts paid under protest were reflected in the balance sheets and subsequently deducted upon refund receipt. The Tribunal found that the respondents had demonstrated through documentation that the duty amount was not passed on to customers. This evidence, along with the nature of payment and treatment in financial records, served as a rebuttable indication of no unjust enrichment.

Decision:
After thorough consideration of the evidence and arguments presented, the Tribunal rejected the Revenue's appeal, deeming it devoid of merit. The Tribunal concluded that the respondents had fulfilled their obligation to show no unjust enrichment based on the provided documentation and circumstances of the case, rendering further consideration of cited legal precedents unnecessary.

This detailed analysis highlights the progression of the case, the core issue of unjust enrichment, the evidence presented by both parties, and the Tribunal's decision based on the established facts and legal principles.