2018 (10) TMI 216 - AT - Service Tax

Quantification of Refund - duty paid under protest - case of appellant is the amount of refund was wrongly calculated by the Asst. Commissioner in his Order-in-Original by shifting the relevant date for reversal of CENVAT credit under Rule 11 (3) of CENVAT Credit Rules, 2004 from 01.03.2007 to 21.04.2007 - N/N. 06/2006 dated 01.03.2006 - unjust enrichment. Whether the appellant is entitled to the benefit of the exemption notification as claimed? Whether the appellant is required to reverse the CENVAT credit under Rule 11 (3) of CCR, 2004? If so, what is the relevant date for determining the amount of credit to be reversed? Whether the refund claim is hit by the principle of unjust enrichment/ Eligibility of exemption notification - Held that - There is no dispute that the appellant has entered into contract with HMWSSB for supply and laying of the pipes and that they had paid the duty under protest. It is also not in dispute that they have subsequently obtained the Certificate from the District Collector which has been examined by the lower authority and found in order while deciding on the refund claim. Therefore, the appellant is entitled to the benefit of exemption notification. Since the appellant is entitled to the full exemption under the notification they are required to reverse the CENVAT credit in terms of Rule 11 (3) of CCR, 2004 from the date on which they have started claiming the exemption notification. In other words, they are supposed to reverse the CENVAT credit of the inputs lying in stock and the inputs which have been gone into the goods lying in stock on that date. In this case, the date is 01.03.2007. The lower authority has erroneously shifted this date to 21.04.2007 without any legal basis. Unjust enrichment - Held that - The appellant has entered into a composite contract which included supply of pipes as well as laying, commissioning, etc. The bill of materials as per the contract indicates the cost of the pipes plus the applicable excise duty and determines the amount payable for the pipes after deducting the duty element. The client has also given a Certificate to the effect that they have not reimbursed any excise duty to the appellant. Further, the CA s Certificate produced by the appellant also indicated that they have absorbed the cost of excise duty paid by them and they have not passed on the same to their clients - In view of these facts and circumstances, it is found that the appellant has not passed on the burden of excise duty either directly or indirectly to their client. In this case, the bill of materials in the contract shows that the amount to be paid per pipe includes only the basic cost of the pipe (not the excise duty) plus cost of laying the pipes, etc. This is further strengthened by the CA s Certificate produced by the appellant. In view of the above, we find that the appellant has not passed on the burden of the excise duty either directly or indirectly to their clients and satisfies the requirement to claim refund without being hit by the clause of unjust enrichment - Therefore, their application for refund is not hit by the principle of unjust enrichment. The appellant is entitled to the refund of excise duty paid by them after adjusting the amount of CENVAT credit under Rule 11 (3) of CCR, 2004 calculated as on the date on which they have claimed the benefit of the exemption. Appeal disposed off.

Summary

Issues Involved:
1. Eligibility for exemption notification.
2. Correct cut-off date for reversing CENVAT credit under Rule 11 (3) of CCR, 2004.
3. Applicability of the principle of unjust enrichment.

Issue-wise Detailed Analysis:

1. Eligibility for Exemption Notification:
The appellant claimed the benefit of Notification No. 06/2006 dated 01.03.2006, which required a Certificate from the District Collector. The lower authority, in Order-in-Original No. 24/2008, found the appellant eligible for the refund after examining the certificate and supporting documents. This eligibility was not disputed in subsequent proceedings. Thus, the appellant is entitled to the benefit of the exemption notification.

2. Correct Cut-off Date for Reversing CENVAT Credit:
The appellant argued that the cut-off date for reversing CENVAT credit under Rule 11 (3) of CCR, 2004 should be 01.03.2007, the date they started availing the exemption. The Asst. Commissioner erroneously shifted this date to 21.04.2007. The first appellate authority corrected this mistake, confirming that the correct cut-off date is 01.03.2007, as per Rule 11 (3) of CCR, 2004.

3. Applicability of the Principle of Unjust Enrichment:
The principle of unjust enrichment was contested by the appellant. They provided evidence, including a Certificate from the General Manager (Engg) of their client and a Chartered Accountant's Certificate, indicating that the excise duty was not reimbursed by their client and was absorbed as a cost. The first appellate authority, relying on the Supreme Court judgment in Solar Pesticides Ltd, initially held that the refund should be credited to the consumer welfare fund unless it was proven that the duty was not passed on. However, the Tribunal found that the appellant had not passed on the burden of excise duty, either directly or indirectly, to their client. Therefore, the refund claim was not hit by the principle of unjust enrichment.

Conclusion:
The appellant is entitled to the refund of excise duty paid, after adjusting the CENVAT credit as of the correct cut-off date, 01.03.2007. The appeals were disposed of accordingly, with the Tribunal ruling in favor of the appellant on all issues. The judgment was pronounced in open court on 28.09.2018.