9911796707
Advanced Search 
TMI Blog2002 (4) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. Upon realizing the mistake, the appellants sent to M/s. DTE a cheque dated 3-9-1997 for Rs. 7,08,520/- (which amount of duty the appellants had collected from M/s. DTE at the time of clearance of the goods) as refund of duty wrongly collected. They had not collected the differential amount of Rs. 1,34,521/- from M/s. DTE at the time of clearance of the goods. Hence there was no question of return of this amount to M/s. DTE. However, the appellants had paid the entire amount of Rs. 8,43,041/- to the exchequer. The appellants filed a refund claim with the Assistant Commissioner for this amount on 4-9-1997. The department, by show cause notice, proposed to reject the claim on the ground that M/s. DTE, to whom the incidence of duty had been passed on at the time of clearance of the goods, were not a 'buyer' in terms of Section 11D read with Section 11B of the Central Excise Act and on the further ground that the refund of any duty amount by the appellants to M/s. DTE subsequent to clearance of the goods was inconsequential for purposes of Section 11B and the refund claim was hit by unjust enrichment as the incidence of duty had passed on, at the time of clearance of the goods, to M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court in its order, Counsel pointed out. Counsel maintained that the issue involved in the instant case stood covered by the decision of the Madras High Court in Addison & Company (supra). He also relied on the Tribunal's decision in Thermon Heat Tracers Ltd. v. CCE, Pune [2001 (132) E.L.T. 455]. Referring to the finding of the Commissioner (Appeals) that M/s. DTE were not a 'buyer' of the goods in question, ld. Advocate submitted that, for rejecting a refund claim on the ground of unjust enrichment, Section 11B only required that the incidence of duty should be shown to have been passed on to "any other person", not necessarily to the buyer. Ld. counsel was referring to clause (d) of the proviso to sub-section (2) of Section 11B. According to the counsel, it was sufficient for getting over unjust enrichment if it was shown that the incidence of duty had not been passed on to any other person. M/s. DTE came very much within the purview of the expression "any other person". In this context also, ld. Counsel relied on the Madras High Court's decision. 3. Ld. JDR, Shri S.C. Pushkarna submitted that the decision of the Madras High Court was not good law in view of the fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igher rate of duty for the product, but an amendment thereto brought down the rate to the pre-1-3-1986 level. The Bill received the President's assent on 13-5-1986. The assessee filed refund claims in September-October' 86. During those days, Section 11C was there in the Central Excises and Salt Act, 1944, which authorised the Central Government to direct, by Notification, that (in the situations specified in clauses (a) and (b) of that section) the duty of excise payable on the excisable goods (referred to in clauses (a) and (b) ibid) shall not be required to be paid. The Government issued a notification under Section 11C on 21-12-1988 in respect of the above goods waiving the requirement of payment of duty thereon at the higher rate for the period from 1-3-1986 to 12-5-1986. But, prior to that, sub-section (2) of Section 11C had come into force on 1-7-1988. That sub-section provided for refund of the duty which was consequential to any notification issued under sub-section (1), i.e. Section 11C as it stood prior to 1-7-1988. The proviso to the new sub-section cast a burden on the refund-claimant to prove to the satisfaction of the Assistant Collector that the incidence of duty ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und of unjust enrichment. The Bench took the following view :- "We observe that event under the Central Excise law which gives rise to cause of action for refund is payment of duty made in respect of the goods cleared from the factory. The claim of the assessee has to be related to this event of clearance of the goods on payment of duty. Once the assessee has passed on the duty burden at the time of clearance of the goods thereafter, notwithstanding the fact that he has issued credit notes to the buyer, he cannot come forward to claim the refund in terms of Section 11B and the person who becomes entitled to the benefit of refund is the buyer of the goods. Post clearance transaction by issue of credit note is not the concern of the Central Excise authorities and there is no requirement in law nor any stipulation that in the event of credit given subsequent to the clearance of the goods, the assessee will continue to remain eligible to the refund if available in terms of Section 11B." The above view is essentially similar to that taken earlier by the Tribunal in Sangam Processors (supra). Since Sangam Processors stands upheld by the Apex Court, the High Court's judgment reversing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the U.S. legal provision, our Apex Court has found total parity between the unjust enrichment provisions of the United States and the Indian Union. Clause (d) of the first proviso to Section 11B(2) of the CE Act 1944 has to be understood in terms of its own wording and not in terms of the wording of a corresponding foreign legal provision. It is the legislative intent that is paramount. I have not been able to find out any ruling in Mafatlal Industries on an issue identical to the one presently under consideration in the instant case. Hence, if I may state so with respects to the learned Members of the Bench, the correctness, of the decision in Thermon Heat Tracers case is not beyond the bounds of doubt. 5.4 In the result, two co-ordinate Division Benches of this Tribunal have taken divergent views on the question whether post-clearance adjustments like issuance of credit notes or cheques by refund-claiming assessee to buyer of the goods taking back the burden of duty on the goods would help the assessee get over the bar of unjust enrichment under Section 11B vide Sangam Processors (supra) and Thermon Heat Tracers (supra). The decision in Sangam Processors seems to have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
