1995 (12) TMI 138 - AT - Central Excise

Summary

Issues:
1. Whether the question of unjust enrichment arises when the burden is on the Appellant to prove duty not passed on under Sections 11B and 12B of the Central Excises & Salt Act, 1944?
2. Whether reliance on judicial pronouncements for Customs duty refund applies to Central Excise duty refund?

Analysis:

Issue 1:
The Tribunal considered the denial of duty refund on packing paper used captively after 9-7-1983, alleging duty passed on to customers. The Tribunal disagreed with the Assistant Collector, citing subsequent judgments of High Courts and the Tribunal. It highlighted that in cases of captive use, unjust enrichment does not arise. The Tribunal allowed the appeal, emphasizing the need for lower authorities to provide relief promptly.

Issue 2:
The Collector contended that the burden of proving duty not passed on is essential under Sections 11B and 12B. The learned JDR argued that the legal presumption under Section 12B does not apply as the Respondents did not sell packing paper but "other paper." The JDR referenced the Solar Pesticides case, emphasizing the distinction between Customs and Central Excise cases. The Tribunal found no merit in the Collector's arguments, stating that the question of unjust enrichment arises only when duty-paid goods are sold as such, not after processing. It relied on various High Court judgments, including the Solar Pesticides case, and the Supreme Court's decision in H.M.M. Limited v. The Administrator. Consequently, the Tribunal rejected the Collector's Reference Application, as no legal question arose. Additionally, the Stay Petition filed by the Revenue was also rejected in line with the Reference Application's rejection.