2016 (10) TMI 132 - AT - Central Excise

Refund claim - duty paid under protest - captive consumption of Notional Resin Contents of Wire Enamels formed during the process of manufacture of intermediate product without payment of duty - unjust enrichment - Held that - this is not the case of Excise duty were directly charged in the invoice for the reason that the duty was paid on intermediate product. In such case the test whether the incidence of the duty is forming the part of the final product or otherwise can be ascertain only on the basis that whether price of final product has been enhanced due to duty burden on the intermediate products. In the present case the stand of the appellant that the price of the final product remained same before and after the payment of the excise duty on the intermediate product. As regard the finding of the lower authorities that the amount of duty paid was not shown as receivable in the books account of appellant and the same was booked under Profit & Loss account therefore no other proof required that the duty incidence is not included in the value of final product. I do not agree with this contention of the lower authorities for the reason that treatment of duty paid amount in the books of account is not conclusive proof that the incidence has been passed on to some other person. Even if the duty paid booked under expenditure and the same has not been charged any person then the result will be in profit reduction that itself shows that the incidence of such duty has been born by the appellant hence not passed on to any other person. Therefore merely because the Excise duty is booked as expenditure in Profit & Loss account it cannot be said the incidence of duty has been passed on. As per the above discussion I am of the view that considering the peculiar facts of this case if the duty paid by the appellant has not been explicitly charged to their customer and if price of the final product remained same for the period prior to payment of duty and thereafter it is sufficient to accept that the incidence of Excise duty paid on intermediate product has not been passed to any other person. I therefore direct the adjudicating authority to verify properly the above aspects and if it is found correct then the appellant appears to be prima facie entitled for the refund. - Appeal allowed by way of refund

Summary

Issues:
- Appeal against rejection of refund claim due to unjust enrichment.
- Determination of whether duty incidence was passed on to any other person.
- Consideration of evidence and arguments presented by both parties.

Analysis:
The case involved appeals against the rejection of a refund claim due to unjust enrichment concerning the payment of excise duty on an intermediate product. The appellant, after being pointed out by the Department, started paying duty on the product under protest. The issue revolved around whether the duty incidence was passed on to any other person. The appellant argued that the duty paid on the intermediate product was not part of the sale value of the final products as the price remained the same before and after duty payment. They presented a Chartered Accountant certificate to support their claim that the duty incidence was not passed on. The Revenue contended that the appellant failed to show the duty paid as receivable in their books of account and that the price stability of the final product was not sufficient evidence to prove non-passing of duty incidence.

In the judgment, the Member (Judicial) analyzed the submissions of both sides. It was noted that the appellant paid duty under protest and that the duty was not directly charged in the invoice. The crucial test was whether the price of the final product was affected by the duty burden on the intermediate product. The Member disagreed with the lower authorities' findings that the duty payment not being shown as receivable in the books was conclusive proof of passing on the duty incidence. The treatment of duty paid in the Profit & Loss account did not necessarily indicate passing on of duty. Considering the facts, including the unchanged final product price, it was concluded that the duty incidence had not been passed on. The matter was remanded to the original adjudicating authority for a fresh decision, with a directive to grant a personal hearing to the appellant and issue a new order within three months.

In conclusion, the impugned order was set aside, and the appeal was allowed by way of remand for further examination based on the observations made regarding the evidence and arguments presented by both parties.