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TMI Blog2011 (3) TMI 1443X X X X Extracts X X X X X X X X Extracts X X X X ..... g on the performance of customers/dealers he has passed on the benefit of deduction in the price of the goods. Corresponding excise duty payable is also reduced. He has raised the credit notes and passed on the said benefit to the customer – Held that:- burden of higher excise duty which he has paid for is not passed on to the customers, assessee entitled to refund of excess demand - CEA No. 30/2009 - - - Dated:- 28-3-2011 - N. Kumar and Ravi Malimath, JJ. REPRESENTED BY : Shri K.S. Ravi Shankar, Advocate, for the Appellant. Shri M.R. Bhaskar, Advocate, for the Respondent. [Judgment per : N. Kumar, J.]. This appeal is by the assessee challenging the order passed by the Tribunal [2009 (234) E.L.T. 368 (Tribunal)] upholding the order of the appellate authority and declining to order refund of excess excise duty paid to them on the ground of bar of limitation as well as on the ground of unjust enrichment. 2. The assessee is a Company incorporated under the Companies Act, 1956, and engaged in the manufacture of coated papers falling under Chapter heading 4810.10 of the Central Excise and Tariff Act, 1985 and holding Central Excise Registration. During the relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knowledged on 7-3-2002. Though 7-3-2002 is beyond the period of limitation of one year it is nothing but a continuation of the earlier claim. Therefore, the authorities have taken a too technical view and were in error in rejecting the said application. 5. Secondly he contended on merits that admittedly, the assessee levied and collected excise duty on a higher rate. Depending on the performance of customers/dealers he has passed on the benefit of deduction in the price of the goods. Corresponding excise duty payable is also reduced. He has raised the credit notes and passed on the said benefit to the customer. In other words, the burden of higher excise duty which he has paid for is not passed on to the customers. Therefore, the authorities were not justified in denying the claim on merits. Relying on the Judgment of the CESTAT earlier passed in the case of Addison he further submitted that the Judgment rendered by the Tribunal in Addison s case has been set aside by the Madras High Court [2001 (129) E.L.T. 44 (Mad.)] and therefore the Tribunal was not justified in taking note of the Judgment of the Madras Court solely on the ground that against the said decision the revenue has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resh claim. The said withdrawal was made on 27-2-2002. After the said withdrawal a fresh claim was made on 6-3-2002 but was acknowledged on 7-3-2002. The claim which is made on 7-3-2002 is a fresh claim. It is not a continuation of earlier claim. If there was no defect earlier and when the earlier claim was pending consideration if one more claim Petition is filed giving correct facts to substantiate the said claim interpreting this provision liberally it is possible for this Court to take a view so far as limitation is concerned the date to be reckoned from 30-12-2001. When the claim was made and the subsequent claim is only in the nature of an amendment to the chargeable claim the question of limitation could have been held to be in favour of the assessee. But once when the defects are pointed out instead of complying with the same by producing the documents to substantiate the claim, the claimant withdrew the earlier claim, then the claim for refund ceases to exist. Therefore when a fresh claim is made on 7-3-2002 the limitation is to be computed from that day. If limitation is to be computed from that day the claim for refund from 1-1-2002 up-to 6-3-2002 was clearly barred by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id provision has been the subject matter of interpretation by the Apex Court from time to time. Even before the introduction of the said provision, in fact a Nine Member Bench of the Apex Court had an occasion to consider this aspect of the matter while dealing with the two other Constitutional Bench Judgments and in the case of Mafatlal Industries Ltd. v. Union of India reported in 1997 (89) E.L.T. 247 (S.C.) has laid down the law on the point. The doctrine of unjust enrichment is just and statutory doctrine. No person can seek to collect the duty from both the ends. In other words, he cannot collect the duty from the purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching person. The doctrine of unjust enrichment, is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched. A claim for refund made under the provisions of the Act can succeed only if the assessee alleges and establishes that he has not passed on the burden of the duty to any person/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Indian Evidence Act. It is undoubtedly a rebuttable presumption but the burden of rebutting it lies on the person who claims the refund and it is for him to allege and establish that as a fact that he has not passed on the duty, and therefore equity demands that his claim for refund be allowed. This is the position de hors 1991 Amendment Act. Amendment Act has done no more than to give statutory recognition to the above concepts. 7. Therefore the law on the point is well settled. As is clear from Section 11-B of the Act when a claim for refund is made within the period stipulated, if the appropriate authority on consideration of such claim comes to the conclusion that the applicant has paid excess duty, after holding so, he should pass an order directing crediting of the said excise duty to the welfare fund. It is only if the assessee claims refund on the ground that he has not passed on the burden of duty to his customer by a specific plea and substantiating the same by producing acceptable evidence, then the appropriate authority shall direct payment of the refund amount to the assessee. The question whether the burden of duty has been passed onto the customer or not is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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