9911796707
TMI Blog2010 (4) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant. Shri K.K. Gupta, Advocate, for the Respondent. [Order per : P.C. Chacko, Member (J)]. - The appellants are engaged in the manufacture of consumer electronic products like Radio-sets. They claimed the benefit of concessional rate of duty in terms of Notification No. 57/93-C.E., dated 28-2-1993 in their classification list effective from 1-3-1993 and accordingly started clearance of their products on payment of duty at the concessional rate of duty, © 10% ad valorem. The jurisdictional Assistant Commissioner denied the benefit of the Notification to the appellants and directed them to pay duty @20% ad valorem. Accordingly, the appellants deposited a sum of Rs 1,25,95393 - being the differential duty for the period from 1-3-1993 to 12-5-1993 and started paying duty on subsequent clearances © 20% ad valorem under protest. They also challenged the Assistant Commissioner's order before the Commissioner of Central Excise (Appeals) but unsuccessfully. Ultimately, they succeeded before this Tribunal in their appeal filed against the order of the Commissioner (Appeals). This Tribunal, by order dated 9-11-1995, held the assessee to be eligible for the benefit of the above No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id by them. The surviving question is whether the following refund claims are hit by the bar of unjust enrichment (i) claim for Rs. 17,45,42,335/- filed on 8-4-1996 for the period 13-5-93 to 31-12-95; (ii) claim for Rs. 23,88,558/- filed on 30-4-1996 for the period 1-9-93 to 1-6-94; (iii) claim for Rs. 72,98,720/- filed on 30-4-1996 for the period 26-8-93 to 18-8-95. The appellants' claim of interest on the amount of Rs. 1,66,34,576!- already re funded by the original authority appears to have been settled in their favour, a fact noted in the Hon'ble High Court's order. 5. Heard both sides. Reiterating the grounds of the appeal, the learned Counsel submitted that, even after increase in the rate of duty from 10% to 20%, there was no change in price of the goods and, therefore, it should be held that the burden of differential duty was not passed on to their customers. The amounts of duty were shown as expenses in the Profit Loss Account. The Chartered Accountant of the appellants also certified that the differential duty amounts had not been recovered from the customers by raising debit notes. The differential duty was paid after clearance of the goods. In these circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eased. It was argued that this reasoning of the original authority was equally applicable to the subject refund claims. 6. The learned Jt. CDR, representing the Revenue, invited our attention to the refund claims in question and submitted that the amounts claimed as re fund were shown as having been debited to PLA/RG23A Part II against GPs/invoices issued during the relevant periods. In respect of the claim for re fund of Rs. 23,88,558/-, the JCDR referred to the appellants' letter dated 30-4- 1996 addressed to the Assistant Commissioner of Central Excise, which indicated that they were claiming refund of the said amount as customers of the goods manufactured/supplied by M/s. AS Electronics Corporation. The refund claim for Rs. 72,98,720/- was also said to be of similar nature. The learned JCDR further submitted that what was recovered by the appellants from their customers was cum-duty price, which included duty at the higher rate (20%) and, therefore, the entire amount of duty should be deemed to have been recovered from the customers. Admittedly the price at which the goods were sold by the appellants at all material times was an all-inclusive price. In other words, the sellin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that any certificate from Chartered Accountant had not been produced by the appellants before the original authority. Such a certificate was produced only before the appellate authority and, that too, without the supporting documents. According to the learned JDCR, the C.A's certificate would not be conclusive evidence of the bur den of duty having been retained by the refund-claimant. 7. We are concerned with the three refund claims mentioned in para 4 hereinabove totalling to Rs. 18,42,29,613/-. The assessee paid duty (under pro test) © 20% ad valorem for the relevant periods. Their claim for the benefit of concessional rate of duty (10% ad valorem) under the relevant Notification came to be allowed by this Tribunal and ultimately by the Apex Court and, consequently, they were entitled to claim refund of the excess duty paid by them. The three refund claims in question were accordingly filed by the assessee. The lower authorities have sanctioned the claims but ordered the amounts to be credited to the Consumer Welfare Fund on the ground that the incidence of duty had been passed on by the assessee to their customers. Therefore, the issue before us is whether the three refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of the goods was not the only ground for avoiding the bar of unjust enrichment in respect of the aforesaid re fund claims for a total amount of over Rs. 1.66 crores. The main ground taken was that the differential amount of duty, which was claimed as refund, had been paid through TR6 challans/PLA debits after clearance of the goods. The question now to be considered is whether this ground taken by the adjudicating authority to get rid of unjust enrichment in respect of the aforesaid refund claims will be available to the assessee in the context of claiming refund of Rs. 18,42,29,613/-. 9. In dealing with the above question, we have conducted a scrutiny of the refund claims in FORM 'R' by the assessee. The first of these claims reads as under: "I/we claim refund of Rs. 17,45,42,335/- (.... Only) on the grounds mentioned hereunder. Grounds for Refund enclosed on separate sheet. The amount claimed was originally paid through GPIs/invoices issued during the period from 13-5-93 to 31-12-95". In the separate sheet enclosed with the above refund claim, the assessee has averred, inter alia, as under: "……the duty liability was determined @20% adv. as per Sr. No. 10(b) of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for Rs. 23,88,558/- and Rs. 72,98,720/- indicate that they claimed these refunds as customers for the goods manufactured by M/s. A.S. Electronics Corporation and M/s. Poonitronics (India) Pvt. Ltd. respectively. The assessee obtained 'no objection certificates' from M/s. AS Electronics Corporation and M/s. Poonitronics (India) Pvt. Ltd. to claim refund of the excess duty paid by them. Though, in the above covering letters, the assessee also stated that the additional duty burden had not been passed on to any of their customers, they categorically stated in their reply to the show- cause notice that their clients had cleared the goods on payment of higher duty @20% adv from 13-5-1993 as is clear from the following excerpt from the assessee's reply to the relevant show-cause notice. "It is further submitted that with effect from 1-3-1993 our clients started clearing the goods at the rate of 10% adv. Accordingly, our clients reduced the selling prices of the goods to the stockists for the period post-1-3-1993. These selling prices continued to remain the same even after 13-5-1993 when our clients cleared the goods on payment of higher duty at the rate of 20% ad valorem. This posit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the original authority, the present re fund claims also should be allowed on the same ground without the bar of unjust enrichment. In the present case, we have found preponderant evidence of the incidence of duty having been passed on to the assessee's customers/clients. The assessee has consistently maintained that the prices at which their customers/clients sold the goods at all material times were cum-duty prices. This fact is reflected in their reply to the show-cause notice also. In these circumstances, the assessee's plea of uniformity of prices as a ground against the bar of unjust enrichment is not acceptable. We have already noted the reason for the uniformity of prices in this case vide supra. 13. The appellant produced a certificate dated 10-2-2004 of their Chartered Accountant in support of their claim for refund of duty of Rs. 17,45,42,335/-. The C.A. certified that the assessee had paid the said amount of duty @10% (20 - 10%) by raising excise invoices for the period from 13-5-93 and that the amount had not been recovered from their customers. It was further certified that the amount had been shown as expenses in the Profit Loss account for the aforesaid period wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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