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TMI Blog2017 (1) TMI 1743X X X X Extracts X X X X X X X X Extracts X X X X ..... llant has not been able to establish that incidence of duty was not passed on. The claim of the appellant is that the IC Engines cleared by the appellant to another sister concern have been used in the manufacture of Agricultural Tractors which are exempted from payment of Excise Duty. The issue whether unjust enrichment will be applicable for captive consumption has been decided by the Hon ble Supreme Court India in case of SOLAR PESTICIDES PVT. LTD. VERSUS UNION OF INDIA [ 1991 (10) TMI 42 - HIGH COURT OF JUDICATURE AT BOMBAY] . The Apex Court has categorically held that the principle of unjust enrichment applies to cases of captive consumption also. The case which was with reference to Section 27 of the Customs Act, 1962 will be equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund claim was hit by the bar of unjust-enrichment. When the appeal was challenged before the Commissioner (Appeals), he upheld the order and rejected the refund. Consequently, the appellant filed the present appeal. 3. With the above background, heard Ms. Rinki Arora, ld. Advocate for the appellant and Shri R.K. Mishra, ld. DR for the Revenue. 4. Ld. Advocate submitted that there is no sale while the IC engines are cleared by the appellant to their sister concern. She submitted that in such case, the bar of unjust-enrichment will not operate. She placed reliance on the order of the Tribunal in the case of Hindustan Zinc Limited vs. CCE, Jaipur 2016 (336) ELT 328 (Tri. Del.). She submitted that in Para 28 of the above decision, it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny such conclusive proof and therefore the unjust-enrichment is applicable in terms of section 11B. He also relied upon the decisions in UOI vs. Solar Pesticide Pvt. Limited 2000 (116) ELT 401 (SC), Elgi Ultra Industries Limited -2016 (335) ELT 204 (Mad.) and Bharat Electronics Limited 2015 (327) ELT 565 (Tri. Mum.). 6. I find that refund to the tune of ₹ 10,76,917/- has arisen at the time of finalization of provisional assessment for the period April, 2009 to December, 2010 and February, 2010 to March, 2010. However, the refund of the said amount was not paid in cash to the appellant but was credited to the Consumer Welfare Fund established under Section 12 C of the Central Excise Act, 1944. The reason cited in the Impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods imported are used by the importer himself and the duty thereon passed on to the purchaser of the finished product or that the imported goods are sold as such with the incidence of tax being passed on to the buyer. In either case the principle of unjust enrichment will apply and the person responsible for paying the import duty would not be entitled to get the refund because of the plain language of Section 27 of the Act. Having passed on the burden of tax to another person, directly or indirectly, it would clearly be a case of unjust enrichment if the importer/seller is then able to get refund of the duty paid from the Government notwithstanding the incidence of tax having already been passed on to the purchaser 24 . For the af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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