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TMI Blog2003 (11) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... ur for unjustly enriching him. The certificate, in our view, appears to have been procured from the Chartered Accountant by the appellants to create evidence. Learned Counsel has not doubt, referred to two charts - one captioned as Table No. 1 - the effective rate of excise duty on man-made staple fibre and other as Table No. 6, average price quotation of the price list on the staple fibre, to contend that there was decrease in the market price of the goods manufactured by the appellants, but these tables have not been certified to be correct by any authorised representative of the appellants. These are photocopies on plain prices of papers and from where these photocopies have taken, has not been disclosed and as such, cannot be attached any evidential value. Even otherwise as observed above, mere decrease in the price which may be on account of commercial reasons or many other reasons, discussed above cannot be made basis for holding that statutory presumption prescribed by Section 12B of the Act, stands rebutted. We find from the record that in the earlier round of the proceedings, the matter came up before the Tribunal in appeal filed by the appellant when at that time their re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decrease in the price. To substantiate his contention, the Counsel has referred to the ratio of law laid down in Infar (India) Ltd. v. C.C.E., Delhi - 2002 (150) E.L.T. 411, C.C.E., Chandigarh v. Metro Tyres - 1996 (82) E.L.T. 95, C.C.E., Chandigarh v. Pawan Tyres - 2002 (126) E.L.T. 1061, Sarvaraya Sugar Mills Ltd. A.P., v. C.C.E., Hydrabad - 2003 (85) ECC 743. On the other hand, learned DR has reiterated the correctness of the impugned order and contended that no evidence has been adduced by the appellants in spite of the directions given earlier by the Tribunal by remanding the matter for fresh decision, to prove that burden of duty had not been passed on the them, to the customers. 4.We have heard both sides. 5.It is well settled that it has to be specifically alleged and established by the assessee that he has not passed on the burden of duty to others. Otherwise, his claim for refund would not be maintainable where he himself has not suffered any loss or prejudice, (having passed on, the burden of duty to others), there is no justice or equity in refunding the tax to him merely because he has paid to the Government. It would be a windfall to him. As against it by refusing re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of the inputs, the cost of production etc. The commercial reason may have also forced them to forgo their profit. But to say that they sold goods in the market at loss after decreasing the prices, would not be legally justiciable also. 8.Ordinarily, no manufacture will sell his product at less than the cost price plus duty. He could not survive in business, if he does so. Only in a case distress sales, such a thing is understandable, but such sales are not a normal feature and as such cannot constitute the basis for judging the non-passing of duty incidence to the buyers by the manufacturer. Similarly, no one will ordinarily pass on less excise duty than what is exigible and payable by him under the law. The manufacturer may dip into his profit but would not ordinarily further dip in the excise duty component. He will do so in case of distress sale again. In this context, reference may be made to the judgment of the Construction Bench of the Apex Court in Mafatlal Industries v. Union of India - 1997 (89) E.L.T. 247 (S.C.) wherein Para 91 of the judgment, it has been so observed. The Tribunal has also in Commissioner of Central Excise, Goa v. Christine Hoden (I) Pt. Ltd. - 2003 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter came up before the Tribunal in appeal filed by the appellant when at that time their refund claim was rejected on the ground of unjust enrichment by the authorities gave specific direction to the appellants to furnish evidence such as invoices, copies of books of accounts, and other data to show that they had not passed on the incidence of duty to the buyers even after imposition of duty on their product. But no such evidence has been furnished by them, as we find from the perusal of the Order-in-Original as well as Order-in-Appeal. Learned Counsel except for the Chartered Accountant report and the Tables referred above had not been able to refer any other document to establish that the statutory presumption to be raised under Section 12B of having passed on incidence of duty to the buyers by the appellants, stand rebutted. Therefore, in our view, the refund claim of the appellants has been rightly rejected by the Commissioner (Appeals) through impugned orders by confirming the Order-in-Original being hit by doctrine of unjust enrichment. 10.The ratio of law laid down in none of the case referred by the learned Counsel is attracted to the facts of the present case. In the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the doctrine of unjust enrichment to the refund claim of the petitioner therein. 12.In the third case - C.C.E., Chandigarh v. Pawan Tyres, the observations of the Tribunal that refund could not be denied on account of unjust enrichment when composite price was shown in the invoice, had been based on the view expressed by the Tribunal in C.C.E., Chandigarh v. Metro Tyres (supra), the case which was decided before pronouncement of the judgement of the Constitution Bench of the Apex Court in Mafatlal Industries (supra) wherein it has been specifically ruled that mention of composite price in the invoice by the manufacturer cannot be made basis for holding that incidence of duty was not passed on by him to the buyer. This judgment of the Apex Court was never brought to the notice of the Bench in the above said case and as such, no capital out of it can be made by the appellants. 13.In the fourth and last case - Sarvaraya Sugar Mills Ltd., the doctrine of unjust enrichment was not invoked on the ground that the price remained the same, by relying upon the judgment of the Tribunal in Metro Tyres and Pawan Tyres, cases (supra), the benefit of which can not be given to the appellants in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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