2015 (11) TMI 1470 - AT - Central Excise

Denial of refund claim - Unjust enrichment - returned of excess duty through debit / credit Notes - claimant has not been able to prove that the burden of excise duty had not been passed on to the buyers - Held that - appellant, though initially charged duty in the sale invoice, who on clarification that they have paid the excess duty, issued credit notes and against the said credit notes, the buyer of the goods has returned the excess charged excise duty. The appellant accounted for the said amount in their balance sheet as receivable under the head loan and advances. The lower authority verifying these facts and following the direction of the Commissioner (Appeals) given in the earlier order dated 5.2.2008 applying the ratio of the ONGC case (2003 (10) TMI 108 - CESTAT, NEW DELHI), sanctioned the refund. It is not open for the Revenue to challenge the finding of the Commissioner (Appeals) s order dated 5.2.2008 without filing any appeal against the same. Therefore, the impugned order of the Commissioner (Appeals) cannot be sustained. - it is settled that even if the excess duty for which refund is sought for is collected but subsequently returned by way of credit note, it cannot be said that the incidence of refund amount has been passed on. It is also observed that since the appellant admittedly accounted for the said amount as receivable in the balance sheet, it is a sufficient evidence to hold that incidence of duty has not been passed on, otherwise the amount cannot be accounted for as receivable. - appellant is entitled for the refund and the learned lower adjudicating authority has rightly sanctioned the refund claim - Decided in favour of assessee.

Issues Involved:
1. Refund claim of excess duty paid.
2. Burden of proof regarding non-passing of duty incidence.
3. Application of the ONGC case precedent.
4. Admissibility of credit notes as evidence.
5. Doctrine of unjust enrichment.
6. Finality of unchallenged orders.
7. Contradictory judgments and their applicability.

Issue-Wise Detailed Analysis:

1. Refund Claim of Excess Duty Paid:
The appellant filed a refund claim of Rs. 2,17,007/- on account of excess duty paid under protest due to confusion about the applicable duty rate. The initial refund claim was rejected on the grounds that the appellant failed to prove that the burden of excise duty had not been passed on to the buyers. Subsequent appeals and remands led to the original authority eventually sanctioning the refund after verifying that the facts were similar to the ONGC case.

2. Burden of Proof Regarding Non-Passing of Duty Incidence:
The Assistant Commissioner initially rejected the refund claim, stating that the appellant did not provide sufficient evidence to prove that the duty burden was not passed on to the buyers. The Commissioner (Appeals) upheld this view, emphasizing that the burden of proof lies with the claimant, as per the Supreme Court's ruling in CCEx. v. Allied Photographics India Ltd.

3. Application of the ONGC Case Precedent:
The Commissioner (Appeals) remanded the case to the original authority with specific instructions to verify the claim in light of the ONGC case, where it was established that the issuance of credit notes and the return of excess duty by the customer indicated that the duty incidence had not been passed on. The original authority, following these directions, sanctioned the refund.

4. Admissibility of Credit Notes as Evidence:
The appellant argued that the issuance of credit notes and the accounting of the excess duty as receivable in their balance sheet proved that the duty incidence was not passed on. The original authority accepted this evidence, leading to the sanctioning of the refund. The appellant supported their argument with various judgments, including those from the Karnataka High Court and the Supreme Court, which upheld the validity of credit notes as evidence for non-passing of duty incidence.

5. Doctrine of Unjust Enrichment:
The Revenue contended that the issuance of credit notes did not negate the fact that the duty incidence had been passed on to the customer, invoking the doctrine of unjust enrichment. However, the appellant countered this by citing judgments where it was held that the return of excess duty via credit notes sufficed to prove that the duty incidence was not passed on.

6. Finality of Unchallenged Orders:
The appellant argued that since the Revenue did not challenge the Commissioner (Appeals)'s remand order dated 5.2.2008, the findings and directions in that order attained finality. Therefore, the Revenue could not challenge these findings in subsequent proceedings. This argument was supported by the Madras High Court's ruling in the Madura Coats Pvt. Ltd. case, which stated that unchallenged orders cannot be contested in later appeals.

7. Contradictory Judgments and Their Applicability:
The Tribunal acknowledged the existence of contradictory judgments on the issue of refund claims where duty was initially collected but later returned via credit notes. However, the Tribunal favored the judgments from the Karnataka High Court and the Punjab & Haryana High Court, which supported the appellant's case. These judgments held that the return of excess duty through credit notes and the accounting of the amount as receivable were sufficient to establish that the duty incidence was not passed on.

Conclusion:
The Tribunal concluded that the appellant was entitled to the refund, as the original authority had correctly sanctioned the refund based on the verification of documents and compliance with the directions from the Commissioner (Appeals). The impugned order by the Commissioner (Appeals), which set aside the refund sanction, was deemed unsustainable and was thus set aside. The appeal was allowed, affirming the appellant's entitlement to the refund.

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