2013 (6) TMI 140 - HC - Central Excise

Refund - unjust enrichment - burden to prove and to rebut - held that - burden was upon the appellant to rebut presumption under Section 12B. When Section 11B(1) is read along with Section 12B, it is apparent that the Parliament has acted upon the normal course followed in all commercial transactions and, therefore, there is a presumption that expenditure incurred by persons like appellants, has been recovered by them while selling their product. Because of this normal business practice, not passing burden of taxes to consumer is an exception & therefore, Section 11B(1) requires person claiming refund to produce along with his application for refund, documentary or other evidence showing that incidence of such duty had not been passed by him to any other person. The judgment of Karnataka High Court in the case of C.C.E., Bangalore-II v. Karnataka State Agro Corn. Products Ltd., (2006 (7) TMI 11 - HIGH COURT OF KARNATAKA) shows that in para 6 of judgment of Hon ble 9 Judges of the Hon ble Apex Court in the matter of Mafatlal Industries Limited v. Union of India & Ors. 1996 (12) TMI 50 - SUPREME COURT OF INDIA , has been looked into and a finding has been recorded that there cannot be any unjust enrichment by State Government. The contention that as final product is not exigible, there is no scope for application of principle of undue enrichment, is equally misconceived. The plea & argument that appellant has at times sustained loss is not sufficient to grant refund. The loss suffered may be on account of various factors and if while determining market price of coal, the expenditure on manufacturing process has been looked into, such subsequent loss becomes irrelevant. All the authorities have concurrently found that the appellant-assessee has failed to discharge that burden. We do not see any perversity in that finding. - Decided against the assessee.

Issues Involved:
1. Whether the Tribunal was correct in holding that the appellant passed on the duty paid on conveyor beltings.
2. Applicability of unjust enrichment to capital goods used by the appellant.
3. Whether the cost of conveyor belting was considered while fixing the price of coal.
4. Whether the Tribunal was correct in holding that duty paid on capital goods was passed on to coal purchasers.
5. Applicability of unjust enrichment when the cost of production was higher than the price fixed by the Ministry.

Detailed Analysis:

1. Passing on Duty Paid on Conveyor Beltings:
The appellant argued that the price of coal is fixed by the Government of India and not based on the cost of production, including the cost of conveyor beltings. The Tribunal held that the appellant passed on the duty paid on conveyor beltings. The appellant contended that as a government undertaking, the concept of unjust enrichment should not apply to it. However, the court found that the appellant failed to provide documentary evidence to rebut the presumption under Section 12B of the Central Excise Act, 1944, that the duty burden was passed on to the consumer.

2. Unjust Enrichment and Capital Goods:
The appellant argued that unjust enrichment should not apply to capital goods used in production, as held by the Madras High Court in a previous case. The court noted that the principle of unjust enrichment is relevant and must be applied universally. The appellant did not provide sufficient evidence to demonstrate that the burden of duty on capital goods was not passed on to the consumers.

3. Cost of Conveyor Belting in Price Fixing:
The appellant claimed that the cost of conveyor belting was not considered while fixing the price of coal. The court observed that the appellant did not submit necessary material to show that the Ministry of Energy fixed coal prices without considering the cost of production. The court emphasized that the appellant's statement was not supported by documentary evidence, which was required under Section 11B(1) of the Central Excise Act.

4. Duty Passed on to Coal Purchasers:
The court examined whether the duty paid on capital goods was passed on to coal purchasers. It found that the appellant did not demonstrate that the cost of conveyor belting was excluded from the price of coal. The court referred to a notification that allowed colliery owners to add taxes, duties, and other levies to the price of coal, indicating that the duty burden could be passed on to purchasers.

5. Unjust Enrichment and Production Cost:
The appellant argued that the cost of production during the disputed period was higher than the price fixed by the Ministry, implying that unjust enrichment should not apply. However, the court held that the appellant's occasional losses were not sufficient to negate the principle of unjust enrichment. The court emphasized that the appellant failed to prove that the expenditure on manufacturing, including the cost of conveyor belting, was not considered in the price of coal.

Conclusion:
The court dismissed the appeal, affirming the Tribunal's decision that the appellant failed to rebut the presumption of unjust enrichment. The appellant did not provide adequate documentary evidence to show that the duty burden was not passed on to consumers. The court found no substantial questions of law and maintained the findings of the lower authorities. The appeal was dismissed with no order as to costs.

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