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TMI Blog2012 (12) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... a job worker and vide the invoices issued he had passed on the duty incidence to the principal M/s. BSL Limited. It is pertinent to note that this was done despite of the fact that the Adjudicating Authority had sanctioned the refund claim of Rs. 62,20,506/- and he took the view that refund to the appellant would amount to unjust enrichment. 2. Briefly stated undisputed facts of the case are that the appellant was doing job work i.e. manufacture of processed manmade fabrics falling under Chapters 54 and 55 of Central Excise Tariff Act, 1985 as an independent processor on behalf of the principal M/s. BSL Limited. At the relevant time during the period from March 2001 to February 2002, on incorrect interpretation of the taw, the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is hit by unjust enrichment clause and ordered that refund amount be credited to the Consumer Welfare Fund. This was done by the Adjudicating Authority on the premise that the incidence of excess excise duty has been passed on to M/s. BSL Limited by issuing the invoices for the amounts including the excess excise duty. Aggrieved with the order of Adjudicating Authority, the appellant preferred an appeal and the Commissioner (Appeals) vide impugned order dismissed the appeal and affirmed the order of Adjudicating Authority. 4. Learned Shri Madhav Rao, Advocate, appearing for the appellant has assailed the impugned order as well as order of the Adjudicating Authority on the ground that those orders are based upon wrong reading of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that it was passed on to them by the appellant. Therefore, the decision of Adjudicating Authority and the Appellate Authority that refund of the amount to the appellant would amount to unjust enrichment is not tenable. 5. Shri Sanjay Jain, DR for the respondent, submits that M/s. BSL Limited is sister concern of the appellant company. During adjudication process, the appellant was directed vide letter dated 6th March 2003 and 28th March 2003 to produce the accounts of M/s. BSL Limited maintained by them as well as their own accounts for cross verification, but the assessee did not comply with the direction and did not produce the actual records and therefore, the Adjudicating Authority was not in a position to find out whether or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid, the only test is whether or not the assessee had passed on the excise duty paid by him to the buyer and what the buyer does subsequently is not relevant for deciding the question of unjust enrichment by the assessee. 7. We have carefully considered the rival submissions and perused the records. The undisputed facts are that - (a) the appellant during the period of dispute in respect of the fabrics processed on job-work basis for their customers out of the grey fabrics supplied by them, had paid duty on 115% of the cost of production, while they were required to pay duty on the value determined on the basis of Hon'ble Supreme Court's judgment in case of Ujjagar Prints Ltd. (supra) i.e. cost of grey fabrics in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any goods to mention at the time of clearance on the invoice or like documents, the amount of duty which forms part of the price at which the goods are to be sold. According to Section 12B, "every person who has paid the duty of excise on any goods, under this Act, 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." Thus Section 12B creates a presumption in respect of an assessee who has paid some excise duty on any goods cleared by him, that full incidence of the duty paid by him has been passed on by him to his customer. But from the language of this Section, it is also clear that this presumption is a rebuttable presumption and once he produces evidence showing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purchaser may debit the amount and, thus, pay less amount to the seller, and if all those facts are known and proved, the burden placed on the assessee, by Section 12B, would shift on the revenue, then it is required for revenue to prove, either that the theory projected by the assessee is fake and false, or that the burden has actually been passed on. Once the assessee leads reliable evidence about his having not passed the burden on the purchaser, and the revenue fails to rebut that evidence, the presumption enacted by Section 12B stands sufficiently rebutted, and cannot survive ad-infinitum". 8.2 Hon'ble Madras High Court in case of Addison & Co. v. CCE, Madras (supra) has held that the term "any other person" in Section 11B or t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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