2016 (12) TMI 1228 - AT - Central Excise

Refund - Provisional assessment - Unjust enrichment - Held that - As per the provisional assessment and finalization thereof it was found that excess paid duty arose for the reason that the value applied on the clearances of the goods from the factory is higher than the actual sale value charged from the depot - There is no evidence which shows that this excess paid amount was otherwise collected either from the same buyer or from any other person. In this position, I find that the lower authorities have wrongly credited the amount of excess paid duty into consumer welfare fund - Appeal disposed of by way of remand.

Summary

Issues involved:
1. Whether the appellant is entitled to a refund of excess excise duty paid.
2. Whether the appellant has conclusively proven that the excess paid duty has not been passed on to any other person.
3. Whether the lower authorities correctly credited the excess paid duty into the consumer welfare fund.

Analysis:
1. The appellant resorted to provisional assessment for excise duty payment for the period 2008-09. The assessable value was higher than the value charged to customers, resulting in an excess duty payment of ?30,17,337. The appellant filed a refund claim, which was credited to the consumer welfare fund by the adjudicating authority, citing lack of proof that the excess duty was not passed on to others. The Commissioner(Appeals) upheld this decision, leading to the current appeal.

2. The appellant submitted documents showing sales details, duty paid, and certification by a cost accountant. The balance sheet indicated a substantial amount under various heads, supporting the claim that the excess duty incidence was not passed on to others. The appellant contended that they had adequately demonstrated that the excess duty was not transferred to any other person.

3. The Revenue argued that the appellant's balance sheet did not definitively show the refund amount as part of the total receivables, thus failing to prove that the excess duty was not passed on. The Tribunal examined the evidence and concluded that the excess duty was not passed on, as the duty paid at clearance was higher than the value charged to customers, indicating the burden was on the appellant. The Tribunal found that the lower authorities erred in crediting the excess duty to the consumer welfare fund and remanded the matter for a fresh order, emphasizing the need for a fair hearing and additional document submission if necessary.

In conclusion, the Tribunal held that the appellant had not passed on the excess duty paid to any other person and directed a remand to the original adjudicating authority for a fresh decision. The judgment focused on the lack of evidence indicating passing on the excess duty and the incorrect crediting of the amount to the consumer welfare fund. The appellant was granted an opportunity for a fair hearing and document submission, ensuring a thorough review of the refund claim.