2013 (5) TMI 405 - AT - Central Excise

Rejection of Refund claim - unjust enrichment - As per revenue there is no evidence that excise duty element for which refund was sought was not embedded into the cost in the tendered amount recovered from the Railways - Held that - In case, department still persists that the element of excise duty has been recovered by the appellant from the Railways then it should have further conducted investigated the verifications to refute the documents submitted by the appellants. In the absence of any such corroboration the appeal filed by the appellant is required to be allowed as the burden of not recovering the duty from the Railways has been discharged by the appellant.

Summary

Issues:
Refund claim of duty paid by M/s. PSL Corrosion Control Services Ltd. - Verification of documentary evidence - Recovery of duty element from Railways - Burden of proof under Section 11B of the Central Excise Act, 1944.

Analysis:
The case involved a refund claim of duty paid by M/s. PSL Corrosion Control Services Ltd., where the appellant submitted documentary evidence to prove that the duty element had not been passed on to the Railways. The CESTAT remanded the case to verify the evidence provided by the appellant, including a quotation from M/s. PSL to M/s. Ravi Builders stating no taxes were applicable for the coating job and a certificate from Western Railways confirming no reimbursement of excise duty to M/s. Ravi Builders.

The argument from the respondent focused on the lack of evidence showing that the excise duty element sought for refund was not included in the cost recovered from the Railways. However, the appellant successfully demonstrated through correspondence and certificates that initially, no taxes were considered in the tendered amount and that Western Railways did not reimburse any excise duty to M/s. Ravi Builders.

In light of Section 11B of the Central Excise Act, 1944, the appellant was required to establish that the duty element for which refund was sought had not been recovered from the customer. By presenting documents showing the absence of tax consideration initially and the non-reimbursement of excise duty by Western Railways, the appellant fulfilled the burden of proof. The judgment emphasized that if the department believed the duty had been recovered from the Railways, they should have conducted further investigations to refute the appellant's evidence. Since no such verification was provided, the appeal was allowed as the burden of not recovering the duty from the Railways had been met by the appellant.

Therefore, the appeal was allowed based on the appellant's successful discharge of the burden of proof regarding the non-recovery of duty from the Railways.