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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 ..... nvoice and once the amount which have been shown on the invoice as excise duty which is the part of the value of the product, same has to be recovered from the buyer as the principles of accounting and is rightly been done. Thus, as per the report submitted by the jurisdictional range officer after examining the appellant s books of accounts for the relevant period, 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. 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 inci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner (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 Hon ble Supreme Court against the order dated 04.12.2001 of the CESTAT. The Hon ble Supreme Court vide its order dated 30th April 2007 remanded the matter back to the original adjudicating authority with certain observations. 2.2 In view of the remand proceedings the Assistant Commissioner adjudicated the matter afresh vide Order-In-Original No. SRT-V/ADJ.-24/2007-08/CL dated 03.03.2008 and has held that product Tuberculin PPD are to be classified under sub heading 30.02 of Central Excise Tariff Act, 1985. This order of the Assistant Commissioner dated 03.03.2008 has attained finality as no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Tuberculin PPD was Rs.90. The goods were cleared by them to their customers after allowing a discount of Rs. 13.50 and thus in fact the product was sold at Rs.76.50/-. Since the product was classified by the appellant under sub heading no. 3002.00 where no excise duty was payable and goods were sold at Rs.76.50 paisa. After December 2001, when the appellants started paying duty under protest, the sale price of Tuberculin PPD remained Rs.90/-. The customer was offered same discount of Rs. 13.50 and ultimate price recovered from the customer remained Rs.76.50. However, in invoice the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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, hence no comments . I observe that the said para-5 was related to the bar of unjust enrichment, which the claimant claim that their claim is not hit by it as they have not passed on the incidence to their customers but the duty incidence has been borne by them. The Range Officer was requested to comply further on the said aspect from the relevant invoices/documents after collecting the same from the claimant. 15. The Range Officer, vide his letter dt. 06.05.2010, reported that - On scrutiny of the same it is noticed that in some invoices, the sales made from the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpenditure 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 duty has not been passed by M/s. Span Diagnostics and has been borne by the unit. The said C.A. certificate has been found without taking into account the fact that the assessee has charged the duty amount as expenditure in their P L account and also the party has received the entire sale amount from their customers including the duty therefore the certificate produced by the party is not acceptable and not admissible as proof against unjust enrichment. It has been held by the Hon'ble CESTAT (para-2) in the case of M/s. Charu Home Products Pvt. Ltd. v/s C.C. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chment 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 decision in case of MAFATLAL INDUSTRIES LTD.-1997 (89) E.L.T. 247 (S.C.). 8. In view of the 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 principles of unjust enrichment. Before parting we also rely on the Hon'ble Supreme Court's decision in case of MAFATLAL INDUSTRIES LTD. 1997 (84) ELT 247 (SC). We also rely upon the decision of this Tribunal in the case of CCE, Rajkot vs. EAGLE CORPORATION PVT. LIMITED vide final Order No. A/11198/2018 date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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:- 18. Before concluding, we may state that uniformity in price before and after 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 Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly 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 Service Tax amount was recovered from their customer. It is further seen that the C.A. certificate does not hold that the said amount has not been charged to expenditure Moreover the reasons for holding that the amount has not been recovered from others is blind statement without any reasoning or arguments. 8. We do not find any reason to deviate from the aforesaid finding/conclusion of the Tribunal and we have no hesitation in applying the said principle to the facts and circumstances of the present case, which a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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