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TMI Blog2020 (11) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... aised by the appellant M/s.CPCL on its marketing company M/s.IOCL, which is a separate company, who in turn raised invoice on the purchaser or buyer of the said raw naptha M/s.PPN, who in turn, manufactured power by use of such raw naptha and other raw materials. If at all, duty can be said to have been collected in excess on account of over valuation of the supplies, it is the consumer of the said raw material/raw naptha, viz., M/s.PPN who could have claimed the refund of Excise Duty as per the settled legal position. Merely because M/s.IOCL issued a credit note to the buyer M/s.PPN, it cannot be said that the incidence of Excise Duty was not passed on to the purchaser M/s.PPN. Once the incidence of Excise Duty has been passed on, whether it is further passed on to the ultimate buyer or consumer or not, is not the relevant question. The appellant Assessee M/s.CPCL, cannot be said to have borne any incidence of Excise Duty illegally levied and therefore, the right of the appellant Assessee to claim any refund cannot arise. The question raised before us relates to question of locus standi of the person who is claiming the refund and not on what basis it is claimed. Whether on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent says that refund of excess duty paid has to be allowed once it is shown that the ultimate consumer of the excisable goods did not suffer the duty (claimed as refund). (e) Whether the Tribunal was correct in dismissing the appeal when the ultimate consumer in this case PPNP who was supplied excisable goods namely LPG by the appellant has not suffered the excess duty claimed as refund by the appellant as the ultimate consumer was refunded the excess duty (through credit note) and therefore the excess duty claimed as refund had not been passed on. (f) Whether or not the Tribunal erred in assuming that the excess duty (claimed as refund in this proceedings) had been passed on merely because refund of such duty was through credit note. (g) Whether or not the sum and substance of the judgment of Hon'ble Supreme Court in Addison Co. Ltd. case is that the ultimate user of the excisable goods in respect of which the refund is claimed ought not to have paid the duty claimed as refund by the manufacturer (assessee) (h) When credit note is a means for refunding the excess collected and it is shown through the books of accounts that the excess amount claimed has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er or not the sum and substance of the judgment of Hon'ble Supreme Court in Addison Co. Ltd. case is that the ultimate user of the excisable goods in respect of which the refund is claimed ought not to have paid the duty claimed as refund by the manufacturer (assessee) (h) When credit note is a means for refunding the excess collected and it is shown through the books of accounts that the excess amount claimed has been refunded to the ultimate buyer of the subject excisable goods, whether refund could be rejected. (i) Whether the proof that amount claimed as refund has not been passed on to the ultimate buyer is relevant or the mode (method / procedure) adopted establish the fact of the excess duty (claimed as refund) has not been passed on to the ultimate consumer is relevant for claiming refund under Section-11B of CEA'44. (j) Whether in the facts and circumstances of this case is it not enough to show that the ultimate buyer of the excisable goods MFL had not borne the duty claimed as refund by the appellant to the eligible for refund. (c) The questions of law raised in CMA No.4301 of 2019 are as follows:- (a) Whether or not the Tribunal erred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the ultimate consumer is relevant for claiming refund under Section-11B of CEA'44. (j) Whether in the facts and circumstances of this case is it not enough to show that the ultimate buyer of the excisable goods KSCL had not borne the duty claimed as refund by the appellant to the eligible for refund. 2. The reason given by the learned Tribunal in its impugned order is quoted below for ready reference :- 6.The authorities below have rejected the refund claim holding that as per the doctrine of unjust enrichment, the duty has been passed on to the buyer. Mere issuance of Credit Notes will not establish that the duty has not been passed on to another. The Hon'ble Apex Court in the decision of M/s.Addison Co. Ltd. (supra) has well analyzed the issue and held that mere issuance of Credit Notes cannot be the sole basis for holding that the duty has been borne by the Assessee and that it has not been passed on to another. 7.Following the said decision and appreciating the facts, I hold that the credit of the sanctioned refund to the Consumer Welfare Fund is legal and proper. The impugned orders do not require any interference. 3. The learned Counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of raw naptha in question, viz., M/s.PPN, for the electricity or power manufactured out of use of such raw naptha. The Appellant company is entitled to a refund and the only reason given in the impugned show cause notice for refusing the said refund to the Appellant was that on the basis of the Credit Notes issued by M/s.IOCL to M/s.PPN, refund could not be claimed by the Appellant M/s.CPCL. He has further submitted that as far as refund claim on the basis of Credit Notes is concerned, the Hon'ble Supreme Court in the case of M/s.Addison Co. Ltd. and itself has held, following the judgment of the Hon'ble Supreme Court in the case of UOI vs. Bombay Tyre International Pvt. Ltd., 1983 (14) ELT 1896 , that on the basis of the Credit Notes issued with regard to trade discounts, which are later on given by the supplier, such Excise Duty refund can be claimed and therefore, on this basis, the Department could not have refused refund to the Appellant M/s.CPCL. On the question of presumption under Section 12B of the Act, the learned counsel for the Assessee submitted that the presumption of the incidence of duty having been passed on to the buyer, is not applicable in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und as he would be unjustly enriched. It will be useful to refer to the relevant para of Mafatlal Industries Vs. Union of India (supra) in this connection. 108. (iii) A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the petitioner/ plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incidence of the Excise Duty is deemed to have been passed on by the appellant M/s.CPCL and therefore, the Appellant is not entitled to any refund of Excise Duty u/s 11B of the Act, merely because M/s.IOCL, the marketing company found that the valuation or price adopted for charging of Excise Duty was on the higher side and on that basis, Credit Notes are said to have been issued to the buyer company M/s.PPN. He further submitted that merely because the appellant and M/s.IOCL have a running account between them, it cannot be said that on the basis of Credit Notes issued by M/s.IOCL, the incidence of Excise Duty is said to have been borne by the appellant Assessee M/s.CPCL. He submitted that once the incidence has been passed on, Excise Law clearly provides the end result of the same, up to the final buyer or consumer of the goods in question who, if identifiable can claim a refund, if the refund of Excise Duty is indeed due and the same has been collected in violation of Article 265 of the Constitution of India. He submitted that nothing of this sort has happened in the present case and if the final consumer is not identifiable, the law provides for such Excise Duty collected to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... borne any incidence of Excise Duty illegally levied and therefore, the right of the appellant Assessee to claim any refund cannot arise. The law in this regard of unjust enrichment has been settled as aforesaid, beyond pale of doubt, by the Constitution Bench Judgment of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. , reiterated and followed by the Hon'ble Supreme Court in the case of Addison Co.Ltd. , wherein the contentions which are now raised before us and almost similar contentions having been raised there, have been negatived by the Hon'ble Supreme Court, reversing the decision of the Division Bench of the Madras High Court, vide paragraph 18 quoted above. (b) The question raised before us relates to question of locus standi of the person who is claiming the refund and not on what basis it is claimed. Whether on the basis of Credit Note issued by M/s.IOCL, a refund of Excise Duty could be made or not is not the question, and the claim of the Assessee is not fortified merely because the show cause notice refuted the claim of the Assessee on the basis of credit note alone. Therefore, viewed from that angle, even if the contention of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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