2016 (6) TMI 406 - AT - Central Excise

Refund claim in respect of the levy of compounded duty disputed - Discharge the burden of unjust enrichment - Held that - C.A. certificate does not help the appellants. Under the Compounded Levy Scheme, the invoices do not show the duty element. The duty is calculated on the basis of number of machines installed and the duty element is recovered by the assessee as part of the cost of production. There is no separate entry with respect to the duty amount in the invoices. The certificate of C.A. states that the above mentioned firm had made the payments as per the demand raised by the Government Department and subsequently no amount either before or after payment has been recovered from the Customers towards duty. The invoices issued by the appellant would obviously not shown any duty element and, therefore, question of showing the recovery of duty separately does not arise. In view of the above, the C.A. certificate has no evidential value. If the amount has been shown as expenditure in the Profit and Loss account, it amounts to passing of the incidence of duty to the customers. Unjust enrichment is a question of fact and the said order does not disclose as to what was the nature of document which was produced and why the burden cast on the assessee was discharged by them. Thus find that the appellant has not been able to discharge the burden of unjust enrichment raised by the Revenue

Summary

Issues:
1. Challenge to demand of duty under Compounded Levy Scheme
2. Refund claim for levy of compounded duty
3. Burden of unjust enrichment on the appellant
4. Evidence submitted by the appellant to establish non-passing of duty burden
5. Analysis of CA certificate and Profit & Loss statement
6. Application of legal precedents in determining unjust enrichment
7. Dismissal of the appeal due to failure to discharge burden of unjust enrichment

Analysis:
1. The appellants, manufacturers of fabrics under Compounded Levy Scheme, faced a demand of duty which they paid on 30.03.2000. After obtaining relief from Tribunal, they filed a refund claim for the disputed duty. However, the refund was credited to the Consumer Welfare Fund as the appellants failed to prove that they had not passed on the duty burden to buyers, leading to an appeal before the Tribunal.

2. The appellant's argument centered on the timing of duty payment after goods clearance, citing a Punjab & Haryana High Court decision and presenting a CA certificate and Profit & Loss statement to support their claim of non-passing of duty burden to customers. They also highlighted a similar relief granted to another assessee in a comparable situation.

3. The Revenue relied on legal precedents, including a Supreme Court decision and Tribunal cases, to assert the applicability of unjust enrichment even when duty is paid under protest. They emphasized the insufficiency of a mere CA certificate in discharging the burden of unjust enrichment, citing specific cases where similar claims were rejected.

4. The Tribunal scrutinized the evidence presented by the appellant, namely the CA certificate and Profit & Loss statement. The CA certificate, stating no recovery of duty from customers, was deemed irrelevant due to the nature of the Compounded Levy Scheme where duty recovery is integrated into production costs without separate invoice entries. The Profit & Loss statement entry for duty loss was questioned for inconsistency and treatment as expenditure, indicating passing on of duty burden to customers.

5. Referring to a Tribunal case, the judgment emphasized that treating refund amounts as expenditure in the Profit & Loss account signifies passing on the duty burden, thus failing the test of unjust enrichment. The reliance on an Asst. Commissioner's decision was dismissed for lacking clarity on burden discharge. Ultimately, the appellant's failure to prove non-passing of duty burden led to the dismissal of the appeal for lack of discharging the burden of unjust enrichment.