2010 (4) TMI 448 - HC - Central Excise

Refund Unjust enrichment - The assessee is engaged in the manufacture of HDPE sacks, falling under chapter 6307 of Central Excise Tariff Act, 1985. The The assessee contended that the assessee was not liable to pay the duty and therefore an application came to be filed claiming refund of Rs.7,11,039/-. The claim of the assessee was rejected by the Asst. Commissioner of Central Excise, in order No.7/1990 dt.12.3.1990. Ultimately the jurisdictional Deputy Commissioner of Central Excise conducted a denovo proceedings and passed an order in CESTAT Final order No.329/2001 and later held that the assessee was not entitled to claim refund as it would amount to unjust enrichment. Held that merely because assessee sustained, loss on account of non inclusion of duty. Assessee failed to establish non-inclusion of duty. Question of law answered in favour of revenue.

Summary

Issues:
1. Challenge to the legality and correctness of the CESTAT order.
2. Whether the appeal was allowed on the grounds of "no unjust enrichment" and goods exemption.
3. Alleged erroneous reliance on Supreme Court judgments by the Appellate Tribunal.
4. Refund claim for duty paid on HDPE tapes.
5. Discrepancy in the duty paid and cost calculation by the assessee.
6. Granting of relief by Commissioner of Appeals and Tribunal.
7. Interpretation of Chartered Accountant's certificate in cost calculation.

Analysis:
1. The appeal challenged the legality of the CESTAT order, raising questions on unjust enrichment and goods exemption. The assessee, engaged in HDPE sacks manufacturing, sought a refund of duty paid on HDPE tapes. The claim was rejected initially but later allowed by the Commissioner of Appeals and upheld by the Tribunal, leading to the revenue's appeal.

2. The revenue contended that relief was wrongly granted as the duty cost inclusion in product cost was not proven by the assessee. The Commissioner and Tribunal were accused of error in granting relief based on the assessee's loss claims without sufficient evidence of duty exclusion in cost calculation.

3. The assessee argued that the Chartered Accountant's certificate supported the duty exclusion claim, accepted by the Commissioner. The Court examined the certificate and found that the duty cost was indeed included in the product cost calculation by the assessee, leading to a decision in favor of the revenue.

4. The Court emphasized that the burden was on the assessee to prove duty exclusion in cost calculation to avoid unjust enrichment. Despite the assessee's loss, it was crucial to demonstrate the non-inclusion of duty in product cost, which was not sufficiently proven in this case.

5. Ultimately, the appeal was allowed, setting aside the orders of the Commissioner of Appeals and the Tribunal, restoring the original adjudicating authority's decision. The Court's analysis focused on the lack of evidence supporting the assessee's claim of duty exclusion in product cost calculation, leading to the decision in favor of the revenue.