Futura Fibres Ltd vs Commissioner Of Central Excise
- Case No.Appeal No.E/228/2010
Ratio decidendi
The rule this decision rests on
Where a refund of duty is claimed after the duty was paid under protest and later held not payable, the claimant bears the burden of proving that the duty incidence was not passed on to its customers, and where the amount is shown in its books of account as written off, that burden is not discharged by the absence of evidence to the contrary; the refund is therefore hit by the doctrine of unjust enrichment and is to be credited to the Consumer Welfare Fund.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.4/2010 (M-I) dated 8.3.2010 passed by the Commissioner of Central Excise (Appeals), Chennai]
Futura Fibres Ltd. Appellant
Versus
Commissioner of Central Excise, Chennai-I Respondent
Appearance:
None For the Appellant
Shri K.P.Muralidharan, AC (AR) For the Respondent
CORAM:
Honble Shri R. Periasami, Technical Member
Date of hearing/decision :19.6.2015
FINAL ORDER No.40669/2015
The appellant filed appeal against Commissioner (Appeals) order dt. 8.3.2010. This appeal was listed for hearing on several occasions when none appeared for appellant. When the matter was listed on 6.2.2015 and on 22.5.2015 and the counsel informed the Bench that they had no instructions from the client and final notice was issued and posted the matter today. But none appeared nor any letter filed from the counsel or appellant. Accordingly, the appeal is taken up on merits based on the documents available on record.
2. The issue relates to sanction of refund of Rs.15,39,603/- on the duty paid on the intermediate product cleared to their buyers. Adjudicating authority in his order dt. 18.2.74 held that polymer chips should fall under Tariff item 15A and confirmed the duty and the appellant paid the differential duty of Rs.15,38,334/- under protest. The matter was taken up by assessee before Hon'ble Supreme Court and Consequent to Supreme Court's order dt. 21.8.2001, they filed the refund claim for Rs.15,39,603/-. The adjudicating authority in his de novo order dt. 29.3.2006 sanctioned the refund amount but credited the same to the Consumer Welfare Fund as the refund is hit by doctrine of unjust enrichment. Commissioner (Appeals) upheld the order.
3. Ld. A.R for the Revenue submits that both the adjudicating authority and the appellate authority have clearly dealt the issue at para 12 of the OIO and in OIA it is established that appellant had passed on the duty incidence to their customers.
4. I have examined the records and I find that the LAA in the impugned order dealt the issue in detail and also relied on the apex court's judgment in the case of Sahakari Khand Udyog Mandal Ltd. Vs CCE 2005 (181) ELT 328 (SC). He also relied Tribunal's Larger Bench decision in the case of SRF Ltd. Vs CC Chennai 2006 (193) ELT 186 (Tri.-LB). The appellant failed to produce any evidence that the duty incidence is not passed on to the customers. I find that the burden of proof is on the appellant to establish unjust enrichment particularly when the amount is shown in the books of accounts as 'written off'. Since the issue of unjust enrichment stands settled by the Hon'ble Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. and the Tribunal's Larger Bench SRF Ltd. (supra) and LAA has followed the Apex Court decision.Therefore, I do not find any infirmity in the impugned order. The impugned order is upheld and the appeal is dismissed.
(Dictated and pronounced in open court)
(R. PERIASAMI) TECHNICAL MEMBER
gs
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