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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 ..... d 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 strips whereas, under the new Central Excise Tariff, effective from 01.03.1986, separate sub-headings for cold rolled strips and hot rolled strips have been prescribed and on the ground that the respondent had passed on the burden of Central Excise duty to the buyers. The adjudicating authority rejected the refund claim vide order dated 01.03.1996 which has been confirmed by the ld. Commissioner (Appeals) vide order dated 31.10.2001. The said order was challenged before this Tribunal and this Tribunal vide Final Order No. 90-91/2002 dated 14.02.2002 remanded the matter back to the Commissioner (Appeals) with direction to give findings on the question as to whether the claims of refund of Central Excise duty filed by the respondent are hit by time limit specified under Section 11B of the Act. In remand proceedings, ld. Commissioner (Appeals) vide order dated 04.04.2004, held that refund claims are not barred by limitation since duty has been paid by the respondent under protest which was not vacated by the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 paying document during the relevant period as pointed out by the department. At the same time it is also correct that while referring to invoice, the adjudicating authority is referring to the sales invoice in which the rate per MT of the goods was mentioned. SaIes invoices referred to by the adjudicating authority is in fact the commercial invoice which are raised by the manufacturer for the transactions and the sales were at the composite rates mentioned therein. The issuance of Central Excise gate pass was a statutory requirement for removal of goods during the relevant period. I agree with the submission of the respondent that the duty paying document alone is not the sufficient piece of evidence to decide as to whether the duty incidence was passed on or not. If that be so as is being contested by the department then there would be no case of unjust enrichment where the excisable goods were cleared on payment of duty under such Central Excise gate pass. Therefore, to adjudge the unjust enrichment, other collateral evidences, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicated separately - Refund claim admissible - Sections 11 B(2)(d) and 11C(2) of Central Excises and Salt Act, 1044. The above judgement was maintained by the Supreme Court in Civil Appeal NO.9876-74 of 1996 filed by the department and decided on 17.02.1997 - 1997 (94) ELT 51A. 11. The adjudicating authority passing the earlier order dated 26.8.1999 had examined the facts of the case in context with the above judgments of the Appellate Tribunal in the case of Metro Tyres Limited and concluded that unjust enrichment was not attracted in the fact s and circumstances of the cases. 12. In the impugned order the refund claim relate to the period 1986 to 1992. As far as the issue of unjust enrichment is concerned, the law laid down in the above cases Metro Tyres Limited subsequently confirmed by the Hon'ble Supreme Court is equally applicable. The adjudicating authority while examining the issue of unjust-enrichment has taken into consideration all the relevant factors like the certificates issued by the Chartered Accountant, Financial year wise Cost Data, Sample Invoices and also discussed the relevant case laws. He also rejected refund claim to the time of Rs. 68,42,893/- on acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the burden of duty to its distributor M/s. AGIL (buyer) and it was the buyer who claimed refund. It has been urged on behalf of the respondent and which argument has been accepted by the authorities below that 20% of the total price paid by M/s. AGIL to NIIL represented total excess excise duty levied and not the excess duty collected by NIIL in the form of sale price from its distributor M/s. NIIL. It was argued that excess duty collected by NIIL represented only 1.62% of the total price. lt was argued that resale price charged by M/s. AGIL to its dealers had no relevance to excess excise duty paid by M/s. AGIL to NIIL at the time of purchase as the sale price charged by MIs. AGIL to its dealers was based on the prevailing market price. We do not find any merit in this argument. In the present case, the refund claim is made by a buyer and not by the manufacturer. The buyer says that he has not passed on the burden to its dealers. The buyer has bought the goods from the manufacturer paying the purchase price which included cost of purchase plus taxes and duties on the date of purchase. In such cases, cost of purchase to the buyer is a relevant factor. None of the authorities below ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on the grounds that he had purchased goods from the manufacturer paying the purchase price which included cost of purchase plus taxes and duties on the date of purchase. The Hon'ble Supreme Court observed that in such cases cost of purchase to the buyer is a relevant factor and not the assessees invoice giving a composite price which is relevant if the refund claim is filed by the manufacturer. Hence the Apex Court rejected the refund claim filed by the buyer for want of the information regarding the cost of purchase of the goods. On perusal of this judgment it is observed that the Apex Court in that case has indirectly held that assessee s invoice bearing a composite price is relevant in the case of refund claimed by the manufacturer. The present case is also covered by the above judgment since the sale invoices referred to by the adjudicating authority in the impugned order were bearing a composite price of the goods. it is thus clear that above case law does not support the departmental case on the, issue of unjust enrichment." We have gone through the impugned order wherein the ld. Commissioner (Appeals) has examined the issue of unjust-enrichment independently holding that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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