2018 (3) TMI 486 - AT - Central Excise

Finalization of provisional assessment - Rule 7 of Central Excise Rules 2002 - Held that - The Ld. counsel has requested for remand of the matter seeking a further chance to adduce evidence to establish that the duty burden has not been passed on and that appellant would be able to satisfy the test of unjust enrichment - it is deemed fit to grant a further chance to appellant - appeal allowed by way o fremand.

Summary

Issues:
1. Provisional assessment under Rule 7 of Central Excise Rules 2002.
2. Refund claim of excise duty returned to buyers.
3. Unjust enrichment and passing on of duty burden.

Provisional Assessment:
The appellant, a manufacturer of computer peripherals, resorted to provisional assessment during the impugned period due to giving discounts to distributors. The finalization proposal for provisional assessment included excise duty returned to buyers through credit notes. The refund was initially sanctioned but later directed to be credited to the Consumer Welfare Fund on grounds of unjust enrichment. The Commissioner (Appeals) upheld this decision based on the S.Kumar's Ltd case. The appellant appealed to the Tribunal seeking relief.

Refund Claim:
The appellant submitted documentary evidence, such as credit notes, to prove that the excise duty was passed on to their immediate customers. However, the refund sanctioning authority directed the amount to be credited to the Consumer Welfare Fund due to unjust enrichment concerns. The Commissioner (Appeals) dismissed the appeal, leading the appellant to approach the Tribunal for resolution.

Unjust Enrichment:
During the hearing, the appellant's counsel cited the Apex Court's decision in Commissioner of Central Excise Vs Addison & Company Ltd regarding unjust enrichment. The counsel argued that the duty burden should not be passed on to any buyer in the supply chain until the ultimate consumer. The appellant sought a chance to provide further evidence to establish that the duty burden was not passed on. The Tribunal granted the appellant's request for remand, allowing them an opportunity to furnish additional evidence to prove unjust enrichment. The matter was remanded to the adjudicating authority for a decision after providing the appellant with a fair opportunity for evidence submission and a personal hearing. The appeal was allowed by way of remand to the adjudicating authority for further proceedings.