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TMI Blog2002 (7) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... ic tubes and consume the same captively for the purpose of manufacture of Drip Irrigation Systems. A dispute had arisen in the past, as to whether the plastic tubes/pipes as parts of Drip Irrigation System could also be classified under CET Heading 84.24 as claimed by the assessee and whether the benefit of exemption under Notification No. 56/95-C.E., dated 16-3-95 was available to the plastic tubes cleared for captive consumption. That dispute ultimately came up before this Tribunal and, by Final Order No. 1885/99, dated 30-7-99, this Tribunal decided the issue in favour of the assessee. However, by that time, the assessee had already deposited 'under protest' a total amount of duty of Rs. 92,02,446/- on plastic tubes for the period Octobe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant has challenged the above finding of the Commissioner (Appeals) on the ground that the price of a product was influenced by various factors, apart from the Excise Duty element, and that the price can be kept constant by reducing the profit margin. The lower appellate authority, further, found from the relevant invoices that the assessee had not collected any Excise Duty from their customers. It accepted the Chartered Accountant's certificates produced by the party, which certified that the Excise Duty paid to Govt. was being charged to the Profit and Loss Account of the company. The lower appellate authority relied also on the Tribunal's decision in the case of CCE v. Metro Tyres Ltd., 1995 (80) E.L.T. 410 (T). The appellant has sought t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds of appeal and the oral submissions made by both sides. We note that the lower appellate authority has heavily relied on the Chartered Accountant's certificates, one of which reads as under :- "TO WHOMSOEVER IT MAY CONCERN This is to certify that M/s. Elgi Ultra Industries Limited, India House, Trichy Road, Coimbatore - 641 018 has not charged or collected Excise Duty on the sale of HDPE and LDPE Pipes sold under Drip Irrigation System. I further certify that the price of the HDPE and LDPE Pipes remain unaltered inspite of the order of the Commissioner of Central Excise to charge excise duty which is paid by the company out of its own sources under protest. (emphasis supplied) ---As per the Books and information furnished to me." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Duty was paid on the plastic pipes by the company out of its own sources and was charged to their profit and loss account. Ld. Counsel has submitted that this certification is based on the notes extracted above and similar notes for the financial years prior to 1997-98. The above notes do not seem to support, or form the basis of, the Chartered Accountant's certificates inasmuch as, according to the notes, it was the Excise Duty on Drip Irrigation System (final product) that was paid under protest and charged to Profit and Loss Account and not the Excise Duty on plastic tubes as certified by the C.As. It is significant to note that the respondents themselves have treated the plastic tubes as different from the Drip Irrigation System b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... component of the goods cleared, the incidence of duty cannot be considered to have been passed on to the buyer. As the present respondents have not been able to show that there was no change in the price of their final product with reference to the date of commencement of the period of refund claim, they cannot successfully claim support from the cited case law. 7.The decision of the Hon'ble Supreme Court in the case of Solar Pesticides (supra) is that the principle of unjust enrichment is applicable to cases of captive consumption also. We note that the ratio of this decision referring to refund claims under Section 27(1) of the Customs Act is equally applicable to refund claims under Section 11B of the Central Excise Act. It was held by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of the Drip Irrigation System. The respondents have not been able to establish that the duty paid on the plastic tubes was not added to the price of Drip Irrigation Systems (final product) which were sold to their customers. In other words, the burden of proof against the bar of unjust enrichment has not been successfully discharged by the respondents in this case and the presumption of law (vide Section 12B of the Central Excise Act) remains unrebutted that the assessee has passed on the burden of duty on the plastic tubes indirectly to their customers. Consequently, their refund claim is hit by the bar of unjust enrichment. In the result, we have to set aside the order of the lower appellate authority and restore that of the original ..... X X X X Extracts X X X X X X X X Extracts X X X X
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