2015 (2) TMI 387 - AT - Central Excise

Refund of excess duty paid on account of change of duty rate for one day - respondents raised invoices indicting higher rate of duty and collected the same from their customers - unjust enrichment - Held that - If the contention of the assessee is accepted, it would be lead to a situation that after years also they would claim that they are taking over the burden of duty initially passed on to their customers by issuing of credit notes. If the credit notes issued after four months can be accepted, there is no bar to accept the credit notes issued after a few years also. Therefore, this reasoning that once credit note is issued the manufacturer should be deemed to have absorbed the duty burden is to be rejected. - Decided against assessee.

Summary

Issues involved:
Refund of excess duty paid due to change in duty rate, denial of refund by adjudicating authority, appeal against Commissioner (Appeals) order, subsequent refund received by appellants, show cause notice for erroneous refund, confirmation of erroneous refund by Asst. Commissioner, appeal against impugned order upholding adjudication, compliance with stay order, pending appeal before High Court, settlement of issue on unjust enrichment.

Issue 1: Refund of excess duty paid due to change in duty rate
The appellant filed an appeal against the impugned order denying the refund of excess duty paid on account of a change in duty rate for one day. The duty rate on paper and paper products reduced from 8% to 4% on 07.12.2008. The Commissioner (Appeals) allowed the appeal with consequential relief, but the Tribunal set aside the order-in-appeal and restored the order-in-original. The appellants received the refund during the proceedings before the Tribunal.

Issue 2: Erroneous refund and subsequent proceedings
The department issued a show cause notice demanding erroneous refund, which was confirmed by the Asst. Commissioner. The lower appellate authority upheld the adjudication order, relying on the Tribunal's order dated 22.02.2011. The appellant complied with the stay order and paid the refund amount under protest. The Tribunal had ordered pre-deposit of the entire duty, which was complied with by the appellants.

Issue 3: Settlement of unjust enrichment issue
The Tribunal's final order held that the appellants were not eligible for refund due to unjust enrichment. The order set aside the Commissioner (Appeals) sanctioning the refund and restored the order for depositing the refund to the Consumer Welfare Fund. The Tribunal's decision favored the Revenue, rejecting the appellant's claim for refund based on the principle of unjust enrichment.

Conclusion:
The Tribunal dismissed the appeal and upheld the impugned order, stating that the issue had been settled in favor of the Revenue. The Tribunal's decision on unjust enrichment led to the rejection of the appellant's appeal. Despite a pending appeal before the High Court, as there was no stay against the Tribunal's final order, the impugned order rejecting the appeal was upheld.