M/S. Jindal Photo Films Ltd vs C.C.E. Meerut-I

[Arising out of Order-in-Appeal No. 80-CE/MRT-II/2005 dated 17.05.2005 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Meerut].

For approval and signature:

Hon'ble Shri Rakesh Kumar, Member (Technical)

Hon'ble Shri Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s. Jindal Photo Films Ltd. .Appellants

Vs.

C.C.E. Meerut-I .Respondent

Appearance:

Shri L.P. Asthana, Advocate for the Appellants

Shri R.K. Grover, DR for the Respondent

CORAM:

Hon'ble Shri Rakesh Kumar, Member (Technical)

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 19.02.2015

FINAL ORDER NO. 50422/2015-EX(DB)

Per Ashok Jindal:

The appellant is in appeal against the impugned order rejecting their refund claim.

2. The facts of the case are that the appellant is manufacturer of Color Roll Films. They are filing price list before the concerned authorities for removal of goods. As there was a recession in market, the appellant reduced the price and filed revised price list before the authorities below. Same were approved after a gap of almost four months. During the impugned period, the appellant cleared the goods to their customers by giving discounts which is equivalent to reduced prices and duty payable thereon. But, the appellant continued to pay duty on the price indicated in the original price list. After approval of the revised price list, the appellant filed refund claim of excess duty paid by them. The refund claims were rejected on the premise that appellant has failed to pass the bar of unjust enrichment. On appeal, the refund claim was sanctioned by the Commissioner (A). The said order was challenged by the revenue before this Tribunal. This Tribunal vide order dated 17.05.1999 remanded matter back to ld. Commissioner (A) to pass the order after considering affidavit filed by the appellant in remand proceedings. The Ld. Commissioner (A) held that as appellant has failed to produce any tangible evidence that they have passed the bar of unjust enrichment and rejected their claim. Therefore, the appellant is before us.

3. Shri L. P. Asthana Ld. Advocate for the appellant appeared and submits that in this case the appellant has given discount to their customers which contains the reduction in price plus duty. Same is evident from the invoice itself. In these circumstances, the lower authorities has committed the error by not considering the same, therefore, they rejected the refund claim. In fact the appellant has not received any excess duty from their buyers and they have paid excess duty to the department from their own account. In these circumstances, they have discharged their burden of unjust enrichment. Accordingly, they are entitled for refund claim.

4. On the other hand Ld. AR oppose the contention of the Ld. Counsel and submits that it is not clear from the invoices whether appellant has given the discount on excise duty to their customers or not. Moreover, from the records, it is not coming out whether appellant has discharged the burden of unjust enrichment. Merely issuing credit note to the buyers does not mean that bar of unjust enrichment have been passed. Further he supported the impugned order.

5. Heard the parties. Considered the submissions.

6. In this case the Ld. Counsel for the appellant produced the invoice issued by the appellant before us which is reproduced as under:

7. He also gave the calculation sheet which is also reproduced as under:

8. On perusal of the calculation sheet provided by the appellant and the invoices we find that while granting discount to their customers, the appellant included the prices reduction plus duty component and same has been ignored by the lower authorities while examining their refund claim. In these circumstances, we hold that it is the fact in record which is evident that the appellant has been able to prove that they have not recovered excess duty from their customers. Therefore, we hold that appellant has discharged the burden of unjust enrichment and consequently, is entitled for refund claim.

9. In these circumstances, we set aside the impugned order and allow the appeal with consequential relief.

(Dictated and pronounced in the open court)

(Ashok Jindal) (Rakesh Kumar) Member (Judicial) Member (Technical)

Bhanu

2

E/2680/2005-EX(DB)