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TMI Blog2014 (3) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... ents have rebutted the statutory presumption under Section 12-B of the Act so as to be entitled for refund under Section 11-B of the Act?" Brief facts of the case giving rise to this appeal are that the respondent submitted a classification list for their product "Gulabari" wherein the respondent claimed classification of product as Ayurvedic Medicament under sub heading 3003.30 of Central Excise Tariff Act, 1985. The said classification list was provisionally approved. The department claimed that aforesaid product of respondent is classifiable under sub heading 3303.00 liable to Central Excise duty at the rate of 18%. A show cause notice dated 19.9.1997 was issued to the respondent and by an adjudication order dated 11.12.1997, it was held that product "Gulabari" is classifiable under sub heading 3303.00. The respondent by letter dated 18.12.1997 wrote to the Assistant Commissioner, referring to order dated 11.12.1997 that the respondent is paying differential excise duty "under protest". In the letter further mentioned that respondent shall be claiming the refund once the issue is resolved and the claim will, therefore, be not hit by unjust enrichment clause. The respondent fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voices were filed by the respondent to prove that he has not charged the enhanced excise duty from the buyer. Learned counsel for the appellant relied upon the judgement of the Apex Court reported in AIR (SC) - 2000-0-862 Union of India Vs. Solar Pesticide Pvt. Ltd. Sri Ashok Singh further submitted that the balance sheet which was filed by the respondent do not indicate that amount of Rs. 01,14,78,517/- was to be recovered from the department. Hence Tribunal committed an error in allowing the appeal. Sri A.P. Mathur, learned counsel for the respondent refuting the submission of learned counsel for the appellant contended that the presumption under Section 12-B was satisfactorily rebutted by the respondent. Sri Mathur submits that the differential duty was paid by the respondent under protest after writing letter dated 18.12.1997 where it claimed that the respondent shall be claiming refund once the issue is decided in favour of the respondent. Sri Mathur submits that M.R.P. of the product was not increased by the respondent even after provisional classification in sub heading 3303.00 and the differential duty was paid by the respondent which duty was not passed on the buyer. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. From the materials brought on record, it is clear that the M.R.P. of the product was not increased and the deposit of differential excise duty was made by the respondent under protest with clear representation that refund shall be claimed. The Tribunal in paragraph 5 of the judgement dated 15th April, 2008 has held as follows :- "5. We find that in this case admitted fact is that the appellants paid differential duty after clearance of goods. Demand of differential duty was confirmed for the period 1.3.1990 to 30.9.1997 and the duty has been paid in the year, 1998. It is settled law that all the refund claimed are subject to the principle of unjust enrichment and onus is on the assessee to show that the burden of duty has not been passed on to the customer. In the present case demand was confirmed in respect of product Gulabari after classifying the same under heading different from the heading claimed by the appellant. Demand was subsequently set aside by the Tribunal. In the balance-sheet for the financial year, 1997-98 this amount is shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir buyer during the period of 1994 to 1997 and has to be deemed to have been passed to the buyer, is without any basis and based on surmises and conjunctures. The differential excise duty having been paid by the respondent themselves under protest on different dates in the year 1998, there is no basis to come to the conclusion that the incidence of duty was passed to buyers. The judgement of the Apex Court relied by the learned counsel for the appellant was a case where Tribunal did not decide as to whether assessee has passed the incidence of excise duty to the consumer. In view of the above, the order of the Tribunal was set aside and Tribunal was directed to decide the appeal afresh. It is useful to quote the following observation of the Apex Court :- Civil Appeal No. 2711 of 1999 In view of the decision of this Court in Civil Appeal No. 921 of 1992, we allow this appeal, set aside the judgment of the Tribunal and direct it to decide the appeal of the Revenue afresh on the question as to whether the principle of unjust enrichment would, on facts, apply or not. Civil Appeal No. 6113 of 1999 In a claim for refund of duty, the respondent raised two contentions. Firstly that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he principle of unjust enrichment in the impugned order as under:- "I find that the contention of the department that the amount of Rs. 10,94,263/- was deposited by the party on their own has not been shown in the balance sheet of relevant year 1997-98 in the schedule of loans and advances to be recovered for the department is not sustainable as the party had deposited this amount under protest as an advance payment of central excise duty pending enquiry and investigation and intimated this fact to the Additional Director General of DGAE, Central Excise New Delhi vide their letter dated 06.12.1997 and has also shown in their Balance Sheet of the company for whole of the group in the relevant year 1997-98 in the schedule of "OTHER CURRENT ASSETS". 4. I find that the Revenue had not disputed the above facts of examination of balance sheet in their Grounds of Appeal. So, it is evident from the record that the Commissioner (Appeals) allowed the refund claim after examining the unjust enrichment. Hence, I do not find any reason to interfere the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected." In view of the forgoing discussions, we answ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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