2017 (3) TMI 836 - AT - Central Excise

Unjust enrichment - refund claim - refund sanctioned, but was transferred to Consumer Welfare Fund observing that the appellant had not discharged the burden that the incidence of duty had not been passed on to their buyers/ others - Held that - during the relevant period, Gate Pass( GP-1) was the relevant document, wherein the duty paid used to be shown and subjected to assessment by the Revenue officer in-charge of the factory - In the present case, the appellant though enclosed sample copies of commercial invoices, the relevant gate passes (GP-1s) and other evidences are vital documents so as to establish that the duty element is not passed on to others - the evidences/ documents placed before him are not sufficient to establish that the incidence of duty has not been passed on to the customers/ others - appeal rejected - decided against appellant.

Summary

Issues:
Classification dispute of Synthetic Putty and Nitrocellulose Putty, rejection of refund claim on the ground of limitation, test of unjust enrichment, burden of proof on passing duty incidence to buyers/customers.

Classification Dispute:
The appellant was manufacturing Synthetic Putty and Nitrocellulose Putty, with a dispute regarding their classification under Tariff Item 14 attracting a nil rate or Tariff Item 68 attracting duty. After persuasion, the revised classification under Tariff Item 14 was accepted in 1984, leading to a refund claim filed in 1985. However, the claim was rejected due to limitation.

Test of Unjust Enrichment:
The High Court remanded the matter to reconsider the refund application, emphasizing the test of unjust enrichment based on legal principles from the case of Mafatlal Industries Limited. The appellant failed to prove that the duty incidence was not passed on to buyers/customers, as evidenced by the absence of relevant documents like Gate Pass (GP-1s) and Chartered Accountant certificates.

Burden of Proof:
The appellant argued that they did not collect the duty paid from customers during 1979-1984, supported by commercial invoices. However, the absence of GP-1s and Chartered Accountant certificates hindered establishing the non-passing of duty incidence. The Commissioner (Appeals) found the appellant failed to discharge the burden of proof, leading to the rejection of the appeal.

Judgment:
The Tribunal upheld the Commissioner (Appeals) decision, stating that the appellant did not provide sufficient evidence to show that duty incidence was not passed on to customers. Emphasizing the importance of GP-1s and other vital documents, the Tribunal concluded that the appeal lacked merit and rejected it, affirming the original order.