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TMI Blog2009 (12) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice was admittedly not available before the adjudicating authority for being considered - also such other material may be produced by the respondent to demonstrate that the incidence of duty has not been passed on to the customers for considering the refund claim of the respondent. In the event of such materials being placed before the adjudicating authority, the same shall be considered in accordance with the provisions governing refund claim and in accordance with law. - 28 of 2005 - - - Dated:- 7-12-2009 - K.L. Manjunath and Aravind Kumar, JJ. REPRESENTED BY: Shri C. Shashikantha, Standing Counsel, for the Appellant. Shri K.S. Ravishankar, Advocate, for the Respondent. [Judgement per: Aravind Kumar, J.]. - The revenue is in appeal assailing the order dated 28-2-2005 passed by the Customs, Excise Service Tax Appellate Tribunal, South Zonal Bench, Bangalore, in Final Order No. 308/2005 [2005 (187) E.L.T. 499 (Tri. - Bang.)]. 2. We have heard Sri. C. Shashikantha, learned Standing Counsel for the appellant-revenue and Sri. K. S. Ravishankar, learned counsel appearing for respondent. 3. We notice from the records that at the time of admission of this appeal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise Rules, 1944. Since there was delay in issue of CT-2 Certificate, SATL cleared the Tyres, Tubes and Flaps by paying duty at the rate of 16% Basic duty specified under the First Schedule and 16% special duty specified under the Second Schedule of the Central Excise Tariff Act, 1985. The CT-2 Certificate was, however issued to the respondents on 8-1-2001 and 5-3-2001. (c) The respondent in their capacity as a buyer filed a Refund Claim of Rs. 60,77,117/- on 12-3-2001 before Deputy Commissioner, Central Excise, Aurangabad II Division having jurisdiction over factory of SATL, claiming refund of duty paid by SATL. A Show Cause Notice dated 8-5-2001 was issued to the respondent by the Deputy Com missioner, Central Excise, Aurangabad-II Division Aurangabad pro posing to reject the said Refund Claim on the ground of non sub mission of end use Certificate and not producing evidence to establish that the incidence of duty has not been passed on to any other person. The appellant filed reply to the Show Cause Notice. How ever, the Deputy Commissioner, Central Excise, Aurangabad vide his Order-in-Original No. 112/RFD/2001 dated 12-6-2001, a true copy of which is produced herewith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced by the respondent herein, before the adjudicating authorities was that of the Chartered Accountant M/s. Agiwal P. Associates dated 10-5- 200land certificate produced before Tribunal was that of Shri Om Prakash, and said certificate by itself is not sufficient to arrive at a conclusion that incidence of duty has not been passed on to the buyers. 6. Per contra Sri. Ravi Shankar, learned counsel for the respondent, at the outset would submit that, a show cause notice came to be issued calling upon the respondent herein, to demonstrate the entitlement of refund as well as grant of refund and the queries that were raised in the show cause notice runs from Sl. No. I to ix, which came to be answered issue-wise together with corroborative documentary evidence of Cost Analysis Certificate issued by Chartered Accountant and as such, the rejection of the refund claim by the authority was an error and the said error came to be partially rectified by the Appellate Authority holding that assessee was entitled for claiming refund, but rejected the claim for refund on the ground of unjust enrichment. He further submits that the Tribunal on re-appreciation of the facts and on consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificate, the Tribunal had come to the conclusion that duty has not been passed on to its customers as per the appellant's counsel. In order to appreciate this contention, it would be necessary to extract the relevant provisions of the Act, 1944, namely; Section 11 B and 12B of the Central Excise Act, which reads as follows "11B. Claim for refund of duty. - (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence Including the documents referred to in Section 12A as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty and interest if any, paid on such duty had not been passed on by him to any other person Provided that where an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid on such duty has not been passed on by the persons concerned to any other person. 3. Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal of any Court in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). 4. Every notification under clause (f) or the first proviso to sub section (2) shall be laid before each House of Parliament, if it is sit ting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of the re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect the notification shall thereafter have effect only in such modified form or be of no affect, as the case may be, but without prejudice to the validity of any thing previously done thereu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (ec) in case where the duty becomes refundable as a consequence of judgment decree, order or direction of appellate authority, Appellate Tribunal or any court the date of such judgment, decree, order or direction; (f) in any other case, the date of payment of duty. 12B. Presumption that incidence of duty has been passed on to the buyer - Every person who has paid the duty of excise on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods." 9. It is not in dispute that in so far as the claim for refund of central excise duty, in a given case would arise in two circumstances namely; that the applicant should be entitled for the refund and secondly, the said duty so collected should not have been passed on to its customers in order to avoid doctrine of unjust enrichment being applied to an applicant. Bearing these two aspects in mind, the unjust enrichment theory has received a legislative recognition under Central Excise Act, 1944 by insertion of Section 11B in Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese two factors, it would be a corroborative evidence for the respondent by producing the certificate of the Chartered Accountant or such other technical certificate as may be necessary in a given set of circumstances to establish the fact that duty is borne by the applicant itself. In the absence of these two ingradients, it cannot be universally held that certificate itself is sufficient to establish that incidence of duty has not been passed on to the buyers. Thus, we find that Tribunal was in error in coming to a conclusion that department ought to have given adequate reasons for rejecting the said certificate and in the absence thereof, it is to be accepted. Hence, we find the said reasoning adopted by the Tribunal is erroneous and required to be set aside. Accordingly, we do so. 13. Sri. Ravi Shankar, learned counsel has relied upon the following decisions :- (i) 2006 (202) E.L.T. 41 (S.C.) [Commissioner of C. Ex., Calcutta v. Panihati Rubber Ltd.]. (ii) 2006 (202) E.L.T. 404 (Mad.) [Commissioner of C. Ex., Coimbatore v. Flow Tech Power]. (iii) 2008 (10) S.T.R. 6 (Kar.) [Commissioner of Service Tax, Bangalore v. Standard Chartered Bank]. We find that in those cases ..... X X X X Extracts X X X X X X X X Extracts X X X X
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