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TMI Blog2018 (1) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... 21/2008-DB - Final Order No.62192/2017 - Dated:- 15-12-2017 - Mr. Ashok Jindal, Member (Judicial) And Mr. Devender Singh, Member (Technical) Shri Atul Handa, AR for the Appellant- Revenue Shri Amar Pratap Singh, A.R. for the Respondent ORDER Per : Ashok Jindal The Revenue is in appeal against the impugned order wherein the ld. Commissioner (Appeals) has allowed the refund claim to the respondent after examining the issue of unjust-enrichment. 2. The brief facts of the case are that the respondent filed refund claim of ₹ 1,42,05,749.74 for the period from 01.04.1986 to 31.03.1989 and another refund claim of ₹ 1,28,83,391.84 for the period from 01.04.1989 to 28.02.1992. Both the refund claims were filed in view of the Hon'ble Supreme Court decision in the case of CCE Chandigarh Vs. Steel Strips Limited - 1995 (77) ELT 248 (SC) but the show cause notice were issued for rejection of these refund claims on the ground that the case decided by the Apex court was related to the period prior to 28.02.1986 when old Central Excise Tariff was enforce wherein no separate tariff heading had been prescribed for cold rolled strips and hot rolled strip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies and perused the record. We have gone through the impugned order wherein the ld. Commissioner (Appeals) has examined the issue and gave his finding as under:- 9. From the above it is seen that during the period from 1996 to 2004 the refund cases had been the subject matter of their admissibility or otherwise at various stages of adjudication and appeals. In the present appeal as far as the issue of unjust enrichment is concerned the department submits that during the relevant period the respondent issued Central Excise gate passes for removal of goods, on which they assessed and paid Central Excise duty leviable thereon and as such under the circumstances the adjudicating authority could not take the view point that the burden of duty was not passed on and consequently that the unjust-enrichment is not attracted. It has also been pointed out that during the material period, it was the Central Excise gate pass under which the duty was assessed and paid for removal of goods and not the invoice referred to by the adjudicating authority while examining the issue of unjust-enrichment. In this regard, it is observed that it is correct that Central Excise gate pass was the duty p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Refund - Unjust enrichment - Proof that incidence of duty/higher duty was not passed on to customers, how to be shown - Assessee s invoices during the material period showing a Composite price and duty not indicated separately - Sale price of the goods before as well as after the event (re-classification, revaluation etc.) remained the same - Price even when increased, went up by an amount much less than the amount of duty/differential involved - Conclusion is obvious that incidence of duty/higher duty was not passed on to customers - Sections 11B(2)(d) and 11C(2) of the Central Excises Salt Act, 1944. Another case law titled as Collector of Central Excise Chandigarh Vs. Metro Tyres Limited - 1996 (82) ELT 95 was also relied upon by the earlier adjudicating authority. In this case the Hon ble Tribunal has held as below: Refund - Unjust enrichment - Burden to Prove that incidence of duty passed on to customers discharged by assessee when assessee s invoices during the material period showing a composite price and duty not indicated separately - Refund claim admissible - Sections 11 B(2)(d) and 11C(2) of Central Excises and Salt Act, 1044. The above judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to decide is - whether M/s. AGIL in turn had passed on the duty burden to its dealers as alleged. In the present case, it was argued on behalf of the Department before the authorities below that 20% of the total price paid by M/s. AGIL represented the duty recovered by NIIL as a part of the sale price. It is important to note that M/s. AGIL was the sole distributor of NIIL. Therefore, it is highly improbable for a distributor to incur cost of purchase which included 20% element of duty in addition to the purchase price without passing on the burden to its dealers. From the record, it appears that during the disputed period 1974 to 1984, M/s. AGIL were in trading which further supports the above improbability. In the present case, there is no material placed on record by M/s. AGIL as to how it had accounted for the cost of purchase in its books and the accounting treatment it gave to the said item at the time of payment of the purchase price. No record as to costing of that item has been produced. This material was relevant as in the present case NIIL conceded that it had passed on the burden of duty to its distributor M/s. AGIL (buyer) and it was the buyer who claimed refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cost of purchase is a relevant factor. The facts of the cases before the Tribunal deals with some of manufacturer to the consumer. They deal with assessees invoice bearing a composite price. They are the cases which dealt with the claim of refund by the manufacturer. They did not deal with claim of refund by the buyer. Hence, they have no bearing on the facts of the present case. 18. Before concluding, we may state that uniformity in price before and alter the assessment does not lead to the inevitable conclusion that incidence of duty has not been passed on to the buyer as such uniformity may be due to various factors. Hence, even on merits, the respondent has failed to make out a case for refund. Since relevant factors stated above have not been examined by the authorities below, we do not find merit in the contention of the respondent that this Court should not interfere under Article 136 of the Constitution in view of the concurrent finding of fact. 14. On perusal of the above findings it is observed that the issue involved in the above case law was refund claim filed by the buyer on the grounds that he had purchased goods from the manufacturer paying the purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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