2008 (5) TMI 179 - AT - Central Excise

Refund claimed for excess payment of duty due to calculation error applicability of principle of unjust enrichment on refund - Revenue has not controverted the certificate of the purchaser and certificate of the Chartered Accountant. It is settled law that if the assessee has not received the amount from the suppliers it cannot be held that the appellant will be unjustly enriched - impugned order is not sustainable refund allowed

Summary

Issues:
Refund claim for excess duty paid, unjust enrichment, evidence of non-recovery from buyers.

Analysis:
The appeal pertains to a refund claim of Rs. 1,51,272/- (BED) + Rs. 3025/- (Education Cess) filed by the appellant due to a calculation error resulting in excess duty payment. The appellant claimed refund on all invoices raised, contending non-recovery from buyers. Both authorities ruled against the appellant citing unjust enrichment as the hurdle, requiring evidence of non-recovery from buyers.

The appellant's counsel highlighted correspondences with purchasers indicating non-availment of Cenvat credit and payment excluding excess amount. The appellant relied on precedents like Techno Rubber Products, Peacock Industries Ltd., Alstom Ltd., among others, to support their case.

The respondent argued that mere letters from purchasers are insufficient to prove non-collection of duty by the appellant, asserting that raising invoices implies duty collection.

Upon review, it was found that the appellant issued 5 invoices with wrongly calculated excise duty, all paid by the appellant. The purchaser, in a letter, certified correct duty payment and non-availment of Cenvat credit. Further, the purchaser confirmed payment excluding excess duty, supported by a Chartered Accountant's certificate.

The Revenue did not challenge the purchaser's certificate, and the Tribunal cited legal precedents to rule in favor of the appellant. It was established that if the appellant did not receive the amount from suppliers, unjust enrichment cannot be assumed. Relying on relevant judgments, the impugned order was set aside, and the appeal was allowed with consequential relief.