2003 (1) TMI 745 - AT - Central Excise

Summary

Issues involved: Refund of excess excise duty paid due to incorrect abatement for Sales Tax and rejection of claim under Section 11B of Central Excise Act, 1944.

Analysis:
1. The issue in this case pertains to the refund claim for excess excise duty paid by the appellants due to incorrect abatement for Sales Tax, resulting in a higher assessable value. The appellants contended that the excess excise duty was a result of the incorrect rate of Sales Tax used for abatement, leading to a higher duty liability.

2. The appellants filed a refund claim under Section 11B of the Central Excise Act, 1944, which was rejected by the authorities citing lack of proof regarding the non-passing of the higher incidence. Both the lower adjudicating authority and the appellate authority upheld the rejection of the claim based on this ground.

3. It was acknowledged by the Department that there was indeed excess payment of excise duty due to the incorrect abatement for Sales Tax. The Department admitted to the short payment of Sales Tax and the excess excise duty paid by the appellants during the clearance of goods.

4. The appellants argued that the case involved a mere adjustment of Sales Tax and Excise Duty paid to the State and Central Excise Department, emphasizing the fact of excess excise duty payment. They relied on various case laws to support their claim for refund under Section 11B of the Act.

5. The Tribunal, after considering the submissions, found that the appellants were entitled to a re-determination of the assessable value based on precedents like CCE Guntur v. Nagarjuna Co-op. Sugars Ltd. and Express Rubber Products v. CCE, Baroda. If any excess duty was found to be paid, it was to be refunded to the appellants, subject to the doctrine of unjust enrichment.

6. The Tribunal disagreed with the lower authority's reliance on the lack of evidence regarding the passing on of the duty incidence to reject the refund claim. It cited previous decisions where rejection of refunds based on unjust enrichment in cases of cum duty sale prices was not upheld, emphasizing that the adoption of a lower sales tax rate had indeed led to the excess payment of duty.

7. Since the refund rejection was solely based on the unjust enrichment grounds, the Tribunal found no other reason to deny the refund. Consequently, the order of the lower authority was set aside, and the appeal for the refund was allowed.