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TMI Blog2025 (1) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... fically held that ' The provisions under Section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self- assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re- assessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re- assessment is not permitted nor conditions of exemption can be adjudicated.' Nothing has been brought on record to show that the self assessment made by the appellant at the time of clearance of these goods was ever appealed against by the appellant before the Commissioner (Appeals) in terms of Section 35 of Central Excise Act, 1944 or the order of self assessment has been modified. In absence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel appearing for the appellant and Shri A.K. Choudhary learned Authorized Representative appearing for the revenue. 3.2 Arguing for the appellant learned Counsel submits that- The issue is no longer res-integra, goods which are supplied free of cost (FOC) are not meant for retail sale, therefore, cannot be assessed under section 4a of the Excise Act. Reliance is paced on the following decisions- Jayanti Food Processing (P) Ltd. [2007 (215) E.L.T. 327 (S.C.)]. Calcutta Chemical Company Ltd. and Commissioner of Central Excise, Trichy v. CCE,Chennai-II and Henkel Spic India Ltd. 2016 (4) TMI 13 - CESTAT CHENNAI, Jewel Consumer Care Pvt Ltd. [2023 (3) TMI 534 - CESTAT AHMEDABAD, Contemporary Targett Pvt Ltd. [2019 (5) TMI 871 - CESTAT Ahmedabad] Nestle India Ltd. [2018 (9) G.S.T.L. 71 (Tri. - Mumbai)], Jocil Ltd [2019 (2) TMI 747 - CESTAT Hyderabad], Mistair Health Hygiene (P) Ltd. [2010 (256) E.L.T. 422 (Tri. - Mumbai)]; VVF Ltd. [2009 (236) E.L.T. 604 (Tri. - Ahmd.)]. Doctrine of unjust enrichment is not applicable on refund of Central Excise duty on free supplies in the present case. Bar of unjust enrichment is not applicable when the impugned batteries are cleared on FOC basis. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ology Act, 2009 or the rules made there under, the valuation is to be determined under provisions of section 4A (1) of the Central Excise Act, which reads as under- The Central Government may, by notification in the official Gazette, specify any goods, in relation to which it is required under the provisions of Legal Metrology Act, 2009 or the rules made there under, or under any other law for the time being in force, to declare on the packages thereof the retail sale price of such goods, to which the provisions of sub section (2) shall apply. (iii) It is observed that, the goods ie. batteries supplied by the party are required, under provisions of the Legal Metrology Att, 2009 or the rules made there under, to declare on packages thereof the retail sale price of such goods and in such cases provisions of section 4A 'Valuation of excisable goods with reference to retail sale price' of the Central Excise Act, 1944 (hereinafter referred to as the Act, 1944) are undoubtly applicable. (iv) Further, the appellants have not submitted/referred to any provision of said Legal Metrology Act, 2009 or the rules made there under or any other law for the time being in force which exempts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices were issued by the party and the goods were sold by their other destination/depot at cum- duty price based on market conditions, therefore as provided under section 12B of the Act, 1944, the duty paid by them be deemed to have been passed in full to the buyer of such goods. 6. The appellants have submitted their grounds of appeal against the observations I have gone through the various legal provisions and citations quoted by them including provisions of Section 4A of the Central Excise Act, 1944, Rule 8 Rule 11 of the Central Excise Valuation Rules, 2000, Rule 3 of Legal Metrology (Packaged Commodities) Rules, 2011, contents of the Circular No. 625/16/2002- CX, Dt 28.02.2002 issued by CBEC and their applicability to the present case. Consequently I find that all the above provisions become relevant / applicable only on crossing the hurdle / acid test as provided under Section 11B(2) of the Central Excise Act, 1944 read with the provisions of Section 12 B of the said Act. And contrary to the appellants' assertion / submissions they have not been able to establish through any documentary testimony that the incidence of such amount of duty of excise in relation to which such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im by submitting any documentary evidence relating to sale to retail customers from their godown at Lucknow to which dispatch were made and in respect of which this refund claim relates and that which has been listed in the shart submitted by the appellants (page 15 of Annexure A to the paper book of this appeal), Moreover, they have also not been able to establish that the Incidence of such excise duty for which they are claiming refund has not been passed on by them to any other person. 6.3. Moreover, as per the provisions of Section 12A of the Central Excise Act, 1944, which reads as 'Price of goods to indicate the amount of duty paid thereon- Notwithstanding anything contained in this Act or any other law for the time being in force, every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. As the appellants have received duty element through the realisation of the total value of goods sold to the customers which is equal to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant has claimed that at the time of the said final assessment order dated 30-1-2003, it was not aware of the Notification No. 10/96-C.E. or the said Circular dated 1-3-2001 and as such, no claim thereunder was made by it till that time nor was any such claim so considered or decided in the said final assessment order. 10. On July 18, 2003, the appellant filed a refund claim for an amount of Rs. 28,73,120/- in respect of the duty paid on the said waste paper/broke during the period from July 2001 to March 2002. The said refund claim was filed under Section 11(b) of the Central Excise Act, 1944 (for short, referred to as the 1944 Act ) and within the statutory period of limitation. 11. A show cause notice was issued as to why the said claim be not rejected to which a reply was filed. The assessment committee rejected the said claim. The Commissioner of Appeals dismissed the appeal. Thereafter, successive appeal was preferred before the Tribunal. The Tribunal has rejected the refund claim of the appellant. Hence, the appeal has been preferred under Section 35(b) of the 1944 Act. 12-38. ------------------ 39. In Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistant Collector that the assessee may file an appeal against the order before the Collector (Appeals) if so advised. (emphasis supplied) 40. In Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) - 2004 (172) E.L.T. 145 (S.C.) = (2005) 10 SCC 433, the Court considered unamended provision of Section 27 of the Customs Act and a similar submission was raised which was rejected by this Court observing that so long as the order of assessment stands, the duty would be payable as per that order of assessment. This Court has observed thus : 6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India) case (2000) 6 SCC 650. Once an order of assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an appeal, that order stands. So long as the order of assessment stands the duty would be payable as per that order of assessment. A refund claim is not an appeal proceeding. The officer considering a refund claim cannot sit in appeal over an assessment made by a competent officer. The officer considering the refund claim cannot also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted more than three times to a party during hearing of the appeal.] (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf. 43. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression Any person is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of re-assessment which is appealable but the provisions of Section 128 make appealable any decision or order under the Act including that of self-assessment. The order of self-assessment is an order of assessment as per Section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of re-assessment has to be passed under Section 17(4). Section 128 has not provided for an appeal against a speaking order but against any order which is of wide amplitude. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und cannot be said to be proper. In view of the above referred decision of Hon ble Supreme Court were in it has been specifically held that refund proceedings under Section 11B are executionary in nature. 4.5 Further, it is observed that appellant has in this case through a very Circuitous method sought to establish that burden of duty paid by them has not been passed on them to their customers. It is settled law that the point at which it has to be determined is a point at the time of clearance of goods from the factory premises. On the basis of the documents prepared at the time of clearance, any subsequent documentation would not be relevant for determining whether the said partition has been passed on. In the present case the duty has been paid by the appellant on the basis of documents prepared at the time of clearance of the goods and in terms of Section 12B of Central Excise Act. The burden of said duty should be held to be passed on their customers. 4.6 Appellant in his admission emphasized on the relevance of the expert evidence, there seems to be no denial of the fact that expert evidences should be given due credence in the present case. Appellant have give a Chartered A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition. The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 11B(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 can be a buyer downstream as well. While dealing with the absence of a provision for refund to the consumer in the rules this Court in Mafatlal Industries v. Union of India (supra) held as follows :- 98. A major attack is mounted by the learned counsel for petitioners-appellants on Section 11B and its allied provisions on the ground that real purpose behind them was not to benefit the consumers by refusing refund to manufacturers (on the ground of passing on the burden) but only to enable the Government to retain the illegally collected taxes. It is suggested that the creation of the Consumer Welfare Fund is a mere pretence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 12C which creates the Consumer Welfare Fund and Section 12D 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 organisations for being spent on welfare of consumers. But, this is perhaps for the reason that clause (e) of the proviso to sub-section (2) of Section 11B does provide for the purchaser of goods applying for and obtaining the refund where he can satisfy that the burden of the duty has been borne by him alone. Such a person can apply within six months of his purchase as provided in clause (e) of Explanation B appended to Section 11B. It is, therefore, not correct to contend that the impugned provisions do not provide for refunding the tax collected contrary to law to the person really entitled thereto. A practical difficulty is pointed out in this behalf by the learned counsel for appellants- petitioners: It is pointed out that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty was passed on by NIIL to its distributor M/s. AGIL and whether M/s. AGIL in turn passed on the burden to its dealers. On the first point, NIIL conceded in the earlier proceedings before the High Court that it had passed on the duty burden to its distributor M/s. AGIL. Therefore, the only question which we are required to decide is - whether M/s. AGIL in turn had passed on the duty burden to its dealers as alleged. In the present case, it was argued on behalf of the Department before the authorities below that 20% of the total price paid by M/s. AGIL represented the duty recovered by NIIL as a part of the sale price. It is important to note that M/s. AGIL was the sole distributor of NIIL. Therefore, it is highly improbable for a distributor to incur cost of purchase which included 20% element of duty in addition to the purchase price without passing on the burden to its dealers. From the record, it appears that during the disputed period 1974 to 1984, M/s. AGIL were in trading which further supports the above improbability. In the present case, there is no material placed on record by M/s. AGIL as to how it had accounted for the cost of purchase in its books and the accounting tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In this connection, reliance was placed on several judgments of the Tribunal. We have gone through these judgments. They are not applicable to the facts of this case. In the present case, we are concerned with the distributor buying the products from the manufacturer and reselling them to its dealers. Hence, the cost of purchase is a relevant factor. The facts of the cases before the Tribunal deal with sale by manufacturer to the consumer. They deal with assessees invoice bearing a composite price. They are the cases which dealt with the claim of refund by the manufacturer. They did not deal with claim of refund by the buyer. Hence, they have no bearing on the facts of the present case. 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 interfer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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