9911796707
TMI Blog2024 (6) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. The appellant has only placed reliance on the certificate issued by the CA which is contrary to the invoices, hence the same is not liable to be relied on - the ledger accounts of relevant periods were filed, which also nowhere established that this excise duty was charged but later on adjusted. Hence concurrent finding of facts cannot be interfered in this appeal. The question of law which is framed is also a question of fact, not a pure question of law on which the findings can be reversed. The invoices that came on the record clearly indicate that the appellant collected the excise duty from the buyer and paid it to the excise department and if it is refunded to the appellant, that would be an unjust enrichment to him. Hence, the same has rightly been directed to be credited to the consumer welfare fund as contemplated under section 11B. In the case of GAIL (INDIA) LTD. VERSUS COMMISSIONER CENTRAL EXCISE AND CUSTOMS, MANIK BAGH PALACE, INDORE (MADHYA PRADESH) [ 2023 (10) TMI 879 - MADHYA PRADESH HIGH COURT] , this Court has disbelieved the certificate issued by the Chartered Accountant and maintained the order of the Adjudicating Authority, Appellate Authority and CEGATE r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant submitted a claim of Rs. 4,45,825/- on 21/7/2003 about the years 2000-2001 (Rs. 1,16,533/-), 2001-2002 (Rs. 87,131/-), 2002-2003 (Rs. 2,02,861/-) and 2003-2004 (Rs. 39,300/-) in respect of the duty paid on such containers/ drums at the time of removal from the factory gate under protest. The learned Dy. The Commissioner issued a show-cause notice dated 18/9/2003 which was duly replied to by the appellant and thereafter personal hearing was also provided on 16/10/2003. (iv) Vide order dated 22/10/2003 the learned Dy. Commissioner adjudicated the claim for refund in favour of the appellant but instead of transferring the amount of excise duty to the account of the appellant directed it credited to the account of the Consumer Welfare Fund. (v) The appellant preferred an appeal before the Commissioner (Appeals), Customs Central Excise, Gwalior. Vide order dated 15/3/2004, the learned appellate Authority dismissed the appeal and maintained the order of the adjudicating Authority. (vi) Thereafter the appellant approached the Customs Excise and Service Tax Appellate Tribunal, New Delhi by way of Second Appeal. Vide Final Order No. 175/05-C dated 8/2/2005, the learned Tribunal has dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintainable by the present appellant which has rightly been ordered but instead of refunding it to the appellant, the same has been directed to be credited to the consumer welfare fund. Learned counsel has placed reliance on the judgment passed by the Apex Court in the case of Commissioner of Central Excise, Madras Vs. Addison and Company Ltd. ((2016)10 SCC 56) in which the Apex Court has held that the certificate issued by the Chartered Accountant is liable to be believed. 6. Per contrs learned counsel appearing for the respondents urges that the findings based on the facts of the case recorded by the Adjudicating Authority, Commissioner (Appeals) and CEGATE, are not liable to be interfered in this appeal. The question of law framed by this Court is a question of fact and not a question of law. The appellant has utterly failed to prove from the document, as well as, the evidence that no excise duty was collected from M/s Archana Industries along with the sale price of the drum. Therefore, the Authorities have rightly applied the presumption under section 12B of the Central Excise Act, 1944 which says that every buyer who has paid the duty of excise on any goods under this Act shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was debited by the party under protest as the same was not payable and the reversal of credit is also not warranted on waste package and containers used for packing inputs and allowed the refund claim of Rs. 4,45,825/-. Since the appellant passed on the incidence of duty to the buyers, therefore, the amount is not liable to be refunded to the appellant but liable to be credited to the consumer welfare fund under the principal of Unjust enrichment . All three Authorities concurrently held that the invoices which are on the record duly cite the element of excise duty, which was recovered by the appellant from the customers. The Adjudicating Authority, while adjudicating the case of refund examined the accounts of the appellant and gave a finding of fact that the duty had been recovered from the customer by the appellant. Therefore, the appellant has not come out from the rigour of S. 12B of the Act. 8. The appellant has only placed reliance on the certificate issued by the CA which is contrary to the invoices, hence the same is not liable to be relied on. Before the Tribunal also, the appellant has only filed the ledger account in which the excise duty amount is mentioned in the seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 12-C. There is a proviso to Section 11-B (2) which postulates that the amount of excise duty which is refundable may be paid to the applicant instead of being credited to the fund, if such amount is relatable to the duty of excise paid by the manufacturer and he had not passed on the incidence of such duty to any other person. Clause (e) to proviso of Section 11-B (2) also enables the buyer to receive the refund if he had borne the duty of excise, provided he did not pass on the incidence of such duty to any other person. There is a third category of a class of applicants who may be specified by the Central Government by a notification in the official gazette who are also entitled for refund of the duty of excise. A plain reading of Clauses (d), (e) and (f) of the proviso to Section 11-B (2) shows that refund to be made to an applicant should be relatable only to the duty of excise paid by the three categories of persons mentioned therein i.e. the manufacturer, the buyer and a class of applicants notified by the Central Government. Clause (e) refers to the buyer which is not restricted to the first buyer from the manufacturer. The buyer mentioned in the above Clause ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its own strength. The defect in the Rules, assuming that there is any, can always be corrected if the experience warrants it. The Court too may indicate the modifications needed in the Rules. The Government is always prepared to make the appropriate changes in the Rules since it views the process as a trial and error method says Shri Parasaran . 23. There was a further submission which was considered in the said judgment about the convenience/difficulty for the ultimate consumer to make applications for refund. In that connection it was held as follows: ( Mafatlal Industries case ((1997)5 SCC 536), SCC pp. 626-27, para 99) 99. We agree with Shri Parasaran that so far as the provisions of the Act go, they are unexceptionable. Section 12-C which creates the Consumer Welfare Fund and Section 12-D which provides for making the Rules specifying the manner in which the money credited to the Fund shall be utilised cannot be faulted on any ground. Now, coming to the Rules, it is true that these Rules by themselves do not contemplate refund of any amount credited to the Fund to the consumers who may have borne the burden; the Rules only provide for grants being made in favour of consumer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of finding out who ultimately bore the burden of excise duty. It might be difficult to identify who had actually borne the burden but such verification would definitely assist the Revenue in finding out whether the manufacturer or buyer who makes an application for refund are being unjustly enriched. If it is not possible to identify the person/persons who have borne the duty, the amount of excise duty collected in excess will remain in the fund which will be utilized for the benefit of the consumers as provided in Section 12-D. 10. In view of the above, the invoices that came on the record clearly indicate that the appellant collected the excise duty from the buyer and paid it to the excise department and if it is refunded to the appellant, that would be an unjust enrichment to him. Hence, the same has rightly been directed to be credited to the consumer welfare fund as contemplated under section 11B. In the case of Gail India (Supra) also, this Court has disbelieved the certificate issued by the Chartered Accountant and maintained the order of the Adjudicating Authority, Appellate Authority and CEGATE rejecting the claim of refund of the amount. However, in the present case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
