2003 (7) TMI 132 - AT - Central Excise

Refund claim - Unjust enrichment - Whether in order for the appellant to obtain refund of duty paid by it in excess, it is required to establish as provided in section 11B(2) of the Act that incidence of duty which is available as refund has not been passed to any other person - HELD THAT -We are of the view that it is clear that the constitution bench which decided in Mafallal Industries Ltd. 2002 (11) TMI 90 - SUPREME COURT specifically laid down that even in the case of duty paid under protest, the requirement under sub-section (2) of Section 11B will apply. Respectfully, following this judgment, we are unable to accept the contention of the appellant to the contrary. The fact that the price of the goods remain the same, when different rates of duty are paid on it, does not lead to the inevitable conclusion that incidence of duty has not been passed on to the buyer. It is possible that the uniformity in price may be due to various other factors. He may have reduced or done away the profit or have been carrying the loss. This is in fact the Supreme Court in Mafatlal Industries Ltd. in paragraph 91 when it says, Similarly, no one will ordinarily pass on less excise duty than what is exigible and payable. A manufacturer may dip into his profits but would not further dip into the excise duty component. He will do so only in the case of a distress sale. Again, just because duty is not separately shown in the invoice price, it does not follow that the manufacturer is not passing on the duty. Nor does it follow therefrom that the manufacturer is absorbing the duty himself. This decision has been applied by the Tribunal in its decision in CCE v. Christine Hoden (I) Pvt. Ltd. 2003 (1) TMI 175 - CEGAT, MUMBAI . The appeal is accordingly dismissed.

Summary

Issues:
1. Whether the appellant is required to establish that the incidence of duty available for refund has not been passed on to any other person.
2. Whether the refund arose due to the finalization of provisional assessment.
3. Whether the principles of duty paid under protest apply to the provisions of Section 11B(2).
4. Whether the incidence of duty has been passed on to the buyers based on the contract terms.

Analysis:
1. The appeal dealt with the question of whether the appellant needed to prove that the duty incidence available for refund had not been passed on to any other person. The appellant sought a refund of duty paid in excess, which was initially declined by the Assistant Commissioner and confirmed by the Commissioner (Appeals) due to the lack of evidence regarding passing on the duty incidence. The appellant argued that the duty paid was provisional in nature, citing relevant judgments to support their claim.

2. The issue of whether the refund arose from the finalization of provisional assessment was a key point of contention. The appellant contended that the duty paid between the filing and final approval of the classification list was provisional, thus exempting them from the requirement of proving non-passing of duty incidence. The departmental representative argued that the assessment was not provisional as per Rule 9B, and hence, the refund did not arise from finalizing provisional assessment.

3. The question of whether the principles of duty paid under protest applied to Section 11B(2) was debated. The departmental representative relied on judgments to argue that duty paid under protest did not fall under the purview of Section 11B(2). However, the Tribunal emphasized the application of Section 11B(2) even in cases of duty paid under protest, following the precedent set by the Supreme Court in Mafatlal Industries Ltd.

4. The final issue revolved around whether the incidence of duty had been passed on to the buyers based on the contract terms. The appellant contended that the contract terms ensured that the duty incidence was not passed on to the buyers. However, the Tribunal rejected this argument, stating that the uniformity in price did not conclusively prove non-passing of duty incidence, citing relevant Supreme Court decisions and Tribunal rulings to support their decision.

In conclusion, the Tribunal dismissed the appeal, upholding the decision that the appellant failed to establish that the duty incidence had not been passed on and that the refund did not arise from the finalization of provisional assessment. The judgment provided a detailed analysis of relevant legal precedents and interpretations to support its decision.