2006 (2) TMI 26 - AT - Central Excise

Central Excise Unjust enrichment If excise invoices did not separately show turnover tax and excise duty thereon, would constitute discharge of burden of evidence of non-passing of incident of duty

Summary

Issues:
Appeal against grant of refund to respondents; Claim for refund hit by unjust enrichment; Interpretation of Tribunal's decision in CCE v. Kothari Products; Burden of proof under Section 12B of the Central Excise Act; Question of unjust enrichment under Section 11B.

Analysis:
The appeal before the Appellate Tribunal CESTAT, CHENNAI, pertains to the grant of a refund to the respondents, challenged by the Revenue. Despite no representation from the respondents, the Tribunal notes that the issue is already decided in favor of the respondents by a previous decision. The learned SDR argues that the claim for refund is barred by unjust enrichment as the respondents collected duty on turnover tax from their customers. Reference is made to the Tribunal's decision in CCE v. Kothari Products, which the lower appellate authority relied on. However, the Tribunal finds the facts of the cited case to be similar to the present case, where the burden of duty on turnover tax paid by the respondents is in question. The Tribunal upholds the lower authority's decision based on the precedent set by the Kothari Products case.

Regarding the prohibition on sales tax assessees from collecting turnover tax from customers, the Tribunal considers this a factor favoring the respondents. The crucial issue is whether the respondents actually collected turnover tax and duty from their customers, which is a question of fact. The absence of a separate mention of turnover tax on the invoices issued by the respondents supports their case. The Tribunal opines that a combination of factors supports the respondents in discharging their burden of proof under Section 12B of the Central Excise Act, thereby negating the issue of unjust enrichment under Section 11B. This aligns with the reasoning in the impugned order, which is upheld by the Tribunal.

In conclusion, the Appellate Tribunal sustains the impugned order granting the refund to the respondents and dismisses the appeal brought by the Revenue. The judgment is dictated and pronounced in open court, finalizing the decision in favor of the respondents based on the interpretation of relevant legal provisions and precedents.