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TMI Blog2023 (6) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... le to nil rate of central excise duty. The classification of Tuberculin PPD under CETH 30.02 was not accepted by the authorities and first adjudication order dated 13.05.1994 was passed by the jurisdictional Assistant Commissioner deciding that the classification of the impugned product is under CETH 3005.90 and chargeable to central excise duty with the rate of 15% ad valorem. 2.1 The appellants preferred an appeal before the Commissioner (Appeals) against the order in original dated 13.05.1994 whereunder the classification of their product was decided under CETH 3005.90. The learned Commissioner (Appeals) vide his order dated 15.03.1996 held that impugned goods are cultures of micro organisms and they are not Diagnostic Reagents. The department feeling aggrieved by the order of the Commissioner (Appeals) dated 15.03.1996 filed an appeal before this Tribunal. This Tribunal vide its order dated 04.12.2001 upheld the Order-In-Original and decided that the impugned goods are rightly classifiable under CETH 3005.90 and chargeable to central excise duty. The appellants started paying duty under protest after the decision of this Tribunal and at the same time filed an appeal before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buyers that no excise duty has been charged from them. 3. The learned advocate also argued that Chartered Accountant after examining the books of account of the appellant have certified that excise duty has not been passed on to the buyers. It has been the contention of the learned advocate that price of the product has remained same for the period prior and post December 2001. The learned advocate has also relied upon the decision of this Tribunal in the case of M/S ALLIED CHEMICAL & PHARMACEUTICALS PVT. LIMITED vs. CCE&ST, JAIPUR-I -2019 (2) TMI 849-CESTAT and on the decision of the Hon'ble Bombay High Court in the case of CCE PUNE vs. SANDVIK ASIA LIMITED REPORTED AT 2015 (323) ELT 431 (BOM.) 3.1 The learned advocate has also submitted that no element of the unjust enrichment is present in this case as the burden of excise duty has not been passed on to the buyers of their product. It has further been submitted though the amount of excise duty payable on the product has been indicated on the invoice however, the same has not been recovered from their customers. 3.2 The learned advocate has tried to explain that prior to December 2001, the sale price of their product namely T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination of the record in detail, we find that whether in the present case the refund of the duty is hit by principles of unjust enrichment or not can only be decided by deciding the facts of the matter on merit. In this regard, before proceeding further a few relevant parts of the Order-In-original need to be reproduced from the Order-In-Original dated 19.11.2010 :- "13. The JRO vide his letter dated R-IV/Refund/Spam/2008-09 dated 20.10.08 submitted verification report and on scrutiny of it, it is observed that the unit had paid duty under protest at the time of clearance of the product Tuberculin PPD, and mentioned on the body of the C Ex Invoice "EXCISE DUTY PAID @ 16% NOT RECOVERED FROM CUSTOMER". In this connection, the unit vide letter dt. 07.10.2008 submitted the ledger to the Range Superintendent for the customer to whom the above product was cleared, it is noticed that the unit had recovered full amount of the invoice including the Central Excise duty paid on product Tuberculin PPD. 14. I further note that the Range Officer, vide his letter dt. 13.03.2009, while replying for para-5 of the submission of claimant, reported that "No relevant documents were enclosed, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay not be collected from customers, but loaded on value of goods without quoting specially - appellants to satisfy adjudicating authority that they have not claimed amount from customers and they have not charged amount in profit and loss account as expense. No balance sheet or any other document produced to show that amount not accounted in profit and loss account and not recovered from customers - product chargeable to specific rate of duty does not mean that price not including the amount - Refund barred by "Unjust Enrichment". Thus once the amount is charged as expenditure in Profit & Loss Account and not shown as "receivable" in the balance sheet it is deemed that burden of duty has been passed on to the customers. In the present case the party has charged the duty amount as expenditure in the Profit & Loss Account of relevant period and thus passed on the burden of duty to the customers. The case laws submitted by the party are not relevant / applicable in this case as the facts are not similar. 19. I also find that party has submitted the Chartered Accountant Certificate dated 08.12.2008 issued by M/s. Y.B. Desai & Associates, Chartered Accountants stating that burden of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, wherein it has been reported that the appellant have shown excise duty in their invoice while clearing the goods from the factory as per ledger in majority cases the invoice value including excise duty has been recovered from the customers. This fact clearly shows that duty was paid by the appellant even though under protest has become an integral part of the total sales value and therefore the excise duty so paid by the appellant was collected from their customers. 7. As mentioned above, for the purpose of deciding whether element of unjust enrichment are present in a particular case or not, the only fact need to be ascertained is whether the duty paid by the assessee irrespective of under protest or otherwise was passed on to any other person. From the facts as mentioned in the preceding paragraphs, it can easily be ascertained that incidence of central excise duty has clearly been passed on to the buyers of the appellant's product. In view of above facts, we are of the view that the appellant has passed on the burden of the excise duty to their customers and therefore they are hit by provisions of unjust enrichment. Before parting we also rely on the Hon'ble Supreme Court's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er - 2006 (202) ELT 404. It is seen that in the said case, the duty was paid under protest. Moreover the Hon'ble High Court relied on the fact that the price was fixed by Ministry of Agriculture. We find that these facts are clearly distinguishable and therefore, the decision in the case of Flow Tech Power (supra) cannot be applied to the instant case. In this regard, it is seen that learned C.A. has relied on the decision of the Tribunal in the case of Cummins India (supra), Ved Textile Pvt. Ltd. and BHP Engineers (supra) to assert that even in the circumstances where the amount claimed to be refund is adjusted against the expenditure, the same can be claimed as refund and is not hit by bar of unjust enrichment." 4.2 Learned C.A. had argued that no evidence of any change in the price of service offered by them before and after such absorption of this refund amount against expenditure has been shown to prove that the burden of Service Tax has been passed on to other customers. To counter this argument, learned AR has relied on the decision of Allied Photographics India Ltd. - 2004 (166) ELT 3 (SC) = 2004-TIOL-27-SC-CX, wherein Hon'ble Apex Court has observed as follows:- ..... 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." 4.5 In view of above, we find that the appellant has discharged this amount as expenditure in Profit and Loss account that the burden of tax has been passed on to others. It is further seen that the payment has been made from time to time in the regular case as mentioned in para 4 hereinabove. It is obvious that at the material time, for the period of 5 years duty was not paid under protest and the same was being charged against expenditure means that the Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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