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TMI Blog2009 (1) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... paid an amount of Rs. 5,25,000/- towards Sugar Cess. The levy of sugar cess was challenged by the importer in Bombay High Court and the Hon'ble Court held that the sugar cess cannot be levied on imported sugar. The respondent thereafter filed a refund claim in respect of sugar cess so paid by it. The claim was sanctioned by Asst. Commissioner but was credited to the Consumer Welfare Fund on the ground that the respondents could not produce sufficient evidence to show that incidence of duty has not been passed on to others. The matter was carried in appeal to Commissioner (Appeals) and Commissioner (Appeals) held that doctrine of unjust enrichment would not apply in the present case as collection of cess in the instant case has to be catego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arest possible term has held that the doctrine of unjust enrichment is based on equity and the same is very much applicable irrespective of application of Section 11B of the Central Excise Act. Such similar provision merely gives recognition to the equitable doctrine of unjust enrichment. Absence of statutory provision does not mean that, a person can claim or retain undue benefit. Before claiming a relief of refund, the person claiming refund must show that he has paid the amount for which relief is sought; that he has not passed on the burden on the consumers and that if such relief is not granted, he would suffer loss." Attention was also invited to the Larger Bench decision of the Tribunal in the case of SRF Ltd. v. CC, Chennai - 2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch rate not exceeding Rs. 15/- per quintal of sugar as the Central Government may, by notification in the Official Gazette, specify from time to time." Sub-section (2) further says "that duty of excise levied under sub-section (1) shall be payable by the occupier of the sugar factory in which sugar is produced." Occupier has been defined under Section 2 as a person having control over sugar factory or the owner of the sugar factory. Further, sub-section (4) of Section 3 makes the provisions of Central Excise and Salt Act, and Rules made thereunder applicable in relation to the levy and collection of the sugar cess under Sugar Cess Act. 7. it was his submission that sugar cess is leviable only in respect of sugar manufactured in India which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be denied on the ground of unjust enrichment. The facts of the case in Sahakari Khand Udyog Mandal Ltd. and other decision cited by Revenue are different as in those cases the collection of duty was not unconstitutional as is so in their own case. 8. In the last it was submitted that presuming but not admitting that the doctrine of unjust enrichment will apply in their case, they still maintain that they have not passed on the incidence of duty on the customers but Commissioner (Appeals) has not given any findings on the same and is silent on this issue. For this purpose, the matter should be remanded back to him to consider their plea and to give specific findings on the same. 9. I have considered the submissions. 10. So far as the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act which for sake of convenience was called as unconstitutional levy in Mafatlal Industries case. Para 7 further goes to state that even if it is assumed to be unconstitutional levy, still the appellant would not be entitled to refund in terms of law settled by Mafatlal Industries case. Even in that eventuality it has to be established that incidence of duty has not been passed on to others. Therefore according to Supreme Court decision was in case of unconstitutional levy, the refund claim has to pass test of unjust enrichment. I therefore hold that the refund claim in respect of sugar cess will have to pass the test of unjust enrichment and Commissioner (Appeals) order holding otherwise is liable to be set aside and is accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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