2008 (5) TMI 63 - AT - Central Excise

CCE (Appeals) sanctioned the refund, but has held that part of the refund claim would be credited in their RG23A Part-II account - C.A. certificate reveals that the appellants have not passed on the burden of duty revenue not raised any ground to doubt correctness of evidences considered by commissioner in sanctioning the refund - held that there is no bar in allowing the refund of such credit in cash - appeal of assessee is allowed by way of remand

Summary

Issues Involved:
1. Classification of goods and entitlement to refund.
2. Unjust enrichment and whether the duty incidence was passed on to customers.
3. Method of refund - cash versus credit in modvat account.

Issue 1: Classification of Goods and Entitlement to Refund
The assessee, engaged in the manufacture of feed supplements, classified their goods under chapter heading 23.02, while the Revenue classified them under chapter 29. The Commissioner (Appeals) upheld the assessee's classification, entitling them to a refund of excess duty paid from April 1993 to March 1995. The Assistant Commissioner initially rejected the refund claims based on unjust enrichment, but the Commissioner (Appeals) remanded the case for verification of whether the duty incidence was passed on to customers.

Issue 2: Unjust Enrichment and Duty Incidence
A committee under the Deputy Commissioner was formed to verify if the duty incidence was passed on to customers. The committee's report concluded that except for Rs. 1,83,274/-, the duty incidence was not passed on. Despite this, the Assistant Commissioner rejected the refund claim again on the grounds of unjust enrichment. The Commissioner (Appeals) accepted the committee's report and allowed the refund claim, but directed that part of the refund be credited to the modvat account instead of being paid in cash.

The Revenue appealed, arguing that the Commissioner (Appeals) erred in accepting the Deputy Commissioner's report and that the duty element was presumed to be passed on to customers. The Tribunal found that the committee conducted a thorough inquiry and concluded that the duty element was not passed on. The Tribunal agreed with the Commissioner (Appeals) that the committee's findings were valid and that the Revenue failed to provide any substantive reasons to dismiss the report. The Tribunal also noted that the Deputy Commissioner considered a Chartered Accountant's certificate, which supported the conclusion that the duty incidence was not passed on.

Issue 3: Method of Refund - Cash versus Credit in Modvat Account
The assessee appealed against the part of the order directing the refund to be credited to the modvat account, arguing that their factory had been closed for a long time and they had no use for the credit. The Tribunal referred to the Larger Bench decision in the case of M/s. Guari Plasticulture (P) Ltd., which allowed refunds in cash if the assessee could prove they paid duty from the PLA due to the use of credit for disputed duty. The Tribunal remanded this issue to the original Adjudicating Authority to verify if the assessee was compelled to pay duty from the PLA and to decide the refund claim accordingly.

Conclusion:
The Tribunal rejected the Revenue's appeal, upheld the Commissioner (Appeals)'s order regarding unjust enrichment, and remanded the issue of refund method to the original Adjudicating Authority for further verification.