2010 (7) TMI 751 - HC - Central Excise

Refund of excise duty under Section 11-B of the Central Excise Act - excise duty has not been passed on to the customer - Held that - when the duty at a higher rate was paid by the manufacturer to the Department is not collected from the customer, in other words, if the higher duty is not passed on to the customer and the customer has not paid the said amount, the assessee is entitled to refund of that excess amount paid at a higher rate, substantial question of law is answered against the revenue and in favour of the assessee.

Summary

Issues Involved:
Challenge to refund of excise duty under Section 11-B of the Central Excise Act, 1944 based on the absence of unjust enrichment.

Analysis:
The appeal was filed by the revenue against the orders of the First and Second Appellate Authorities granting the respondent a refund of excise duty under Section 11-B of the Central Excise Act, 1944. The main issue was whether the respondent was entitled to the refund without unjust enrichment, considering a credit note issued and the price adjustments made. The Tribunal and the Commissioner (Appeals) had found in favor of the respondent, emphasizing that the excise duty had not been passed on to the customer and was merely an account adjustment through credit notes.

The respondent, a caustic soda manufacturer, had initially cleared goods at a higher rate but later finalized a contract at a lower price. The First Appellate Authority allowed the refund claim, noting that the price adjustments were provisional and not passed on to the buyer, who had not availed MODVAT credit. The Tribunal, after reviewing a Chartered Accountant's Certificate, confirmed that the duty had not been transferred to customers and upheld the refund claim, rejecting the revenue's appeal.

Upon review, the High Court found that the excise duty was not passed on to the customer but was a mere adjustment through credit notes, making the duty refundable under Section 11B. The court emphasized that if the higher duty was not collected from the customer and not paid by them, the manufacturer was entitled to a refund of the excess amount paid. The court upheld the findings of the lower authorities, stating that they were legally sound and supported by evidence on record, leading to the dismissal of the revenue's appeal. Consequently, the substantial question of law was answered against the revenue and in favor of the assessee, affirming the entitlement to the refund without unjust enrichment.