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TMI Blog2014 (7) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... es not avail CENVAT credit of the duty paid on inputs used in the manufacture of such yarn of waste wool. During the period 1/01/2002 to 30/06/2002, the respondent consumed inputs such as rags and synthetic waste apart from polyester tops and took credit of the of excise duty paid on synthetic waste and polyester tops. Using such cenvatted material, they manufactured yarn of waste wool which were in turn consumed in the manufacture of blankets, shawls and woolen fabrics. On the yarn so manufactured, initially they paid duty. Subsequently they filed a refund claim for the refund of duty of Rs. 76,61,460/- being the amount of duty paid on yarn. The claim was filed with the department on 12/08/2012. However, subsequently on 24/08/2002 the respondent claimed to have reversed CENVAT credit taken on inputs used in the manufacture of waste wool amounting to Rs. 3,12,569/-. The said claim was rejected by the adjudicating authority on two grounds. The first ground was that inasmuch as the reversal was not done at the time of clearance of the yarn and the duty liability was discharged on the yarn, the respondent did not follow the provisions of Rule 6(3)(a) of CENVAT Credit Rules, 2001. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the bar of unjust enrichment inasmuch as no evidence has been led to show that they have not passed on the duty incidence to anybody else. Merely, because the cost of the finished products remained constant both during the period of refund as well as afterwards, that by itself cannot lead to the conclusion that there is non-transfer of duty incidence to the buyers. Reliance is placed on the decisions of this Tribunal in the case of CEAT Ltd. vs. Commissioner of Central Excise, Aurangabad 2012 (281) ELT 126; Sona Udyog Ltd. vs. Commissioner of Central Excise, Indore - II 2005 (183) ELT 396; Toyota Kirloskar Motor Ltd. vs. Commissioner of Central Excise, Aurangabad 2012 (286) ELT 690; the decision of the hon'ble apex Court in the case of Sahakari Khand Udyog Mandal Ltd. vs. Commissioner of Central Excise & Customs 2005 (181) ELT 328 (SC); and Mafatlal Industries Ltd. vs. Union of India 1997 (89) ELT 247 (SC) in support of the above contention. Reliance is also placed on the decision of the apex Court in the case of Commissioner of Central Excise, Mumbai-II vs. Allied Photographics India Ltd. 2004 (166) ELT 3 (SC). 3.2 Reliance is further placed on the decisions of this Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount. 5. We have carefully considered the submissions made by both the sides. 5.1 In the present case, the refund is claimed consequent to availment of benefit under Notification 67/95. The said Notification provided that the benefit of exemption would be available when goods are captively consumed in the manufacture of exempted final products only when no CENVAT credit of the duty paid on the inputs used in the manufacture of intermediate products arising in the manufacture of final products is taken. In the present case, CENVAT credit has been availed by the respondent in respect of synthetic waste and polyester tops. From these raw materials, the respondent has made the yarn of waste wool was captively consumed in the manufacture of blankets, shawls, etc. which were exempt from payment of duty. It is on record that the respondent did not reverse the credit taken at the time of captive consumption of yarn. Credit was not reversed even at the time of filing of the refund claim in August, 2002 and was claimed to have been made on 24/08/2002. From the records submitted by the respondent before the adjudicating authority, the respondent has claimed that they have reversed an amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness if he does so. Only in case of distress sales, such a thing is understandable but distress sales are not a normal feature and cannot, therefore, constitute a basis for judging the validity or reasonableness of a provision. Similarly, no one will ordinarily pass on less excise duty than what is exigible and payable. A manufacturer may dip into his profits but would not further dip into the excise duty component. He will do so only in the case of a distress sale again. Just because duty is not separately shown in the invoice price, it does not follow that the manufacturer is not passing on the duty. Nor does it follow therefrom that the manufacturer is absorbing the duty himself. The manner of preparing the invoice is not conclusive. While we cannot visualise all situations, the fact remains that, generally speaking, every manufacturer will sell his goods at something above the cost-price plus duty. There may be a loss-making concern but the loss occurs not because of the levy of the excise duty - which is uniformly levied on all manufacturers of similar goods - but for other reasons. No manufacturer can say with any reasonableness that he cannot survive in business unless he co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andal Ltd. (supra), the hon'ble apex Court held in para 48 as follows: "48. From the above discussion, it is clear that the doctrine of 'unjust enrichment' is based on equity and has been accepted and supplied in several cases. In our opinion, therefore, irrespective of applicability of Section 11B of the Act, the doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. Section 11B of the Act or similar provision merely gives legislative recognition to this doctrine. That, however, does not mean that in absence of statutory provision, a person can claim or retain undue benefit. Before claiming a relief of refund, it is necessary for the petitioner/appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss." 5.5 This Tribunal in the case of Crompton Greaves Ltd. (supra) held that Chartered Accountant's certificate is not a conclusive proof of having not passed on duty of incidence to the customers. It is incidence of duty and not the duty as such which i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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