M/S. Veer Plastics Pvt. Limited vs Commissioner Of Central Excise & S.T., ...

(Arising out of OIA-185/2012-AHD-III-/SKS/COMMR-A-/AHD dated 29.11.2012, Passed by Commissioner (Appeals) Central Excise, & S.T., Ahmedabad)

M/s. Veer Plastics Pvt. Limited : Appellant (s)

VERSUS

Commissioner of Central Excise & S.T., Ahmedabad : Respondent (s)

Represented by :

For Appellant (s) : Shri Paritosh Gupta, Advocate For Respondent (s) : Shri G.P. Thomas, Authorised Representative

For approval and signature :

Mr. H.K. Thakur, Honble Member (Technical)

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

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

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

Yes

CORAM :

Mr. H.K. Thakur, Honble Member (Technical)

Date of Hearing / Decision : 23.06.2015

ORDER No. A/10852 / 2015 Dated 23.06.2015

Per : Mr. H.K. Thakur;

This appeal has been filed by the appellant with respect to OIA No. OIA-185/2012-AHD-III-/SKS/COMMR-A-/AHD dated 29.11.2012 issued on 03.12.2012, under which OIO No. 11/Assistant Commissioner/DEM/CE/12 dated 20.03.2012 was upheld. Under OIO dated 20.3.2012, adjudicating authority sanctioned a refund claim of Rs. 3,68,500/- to the appellant but deposited the same in the Consumer Welfare Fund alongwith interest erroneously paid as refund to the appellant.

2. Shri Paritosh Gupta, (Advocate) appearing on behalf of the appellant argued that the duty on HDPE tapes consumed in the manufacture of HDPE fabrics and Sacks was paid under protest and the amount refundable was also included in the balance sheet as receivable. He made the Bench go through Para 11 of the OIA dated 29.11.2012 to argue that first appellate authority has erroneously mentioned that Chartered Accountant certificate did not show verification as to how the duty was paid at captive stage shown in the books of accounts. Learned Advocate also made the Bench go through the Chartered Accountant certificate dated 13.10.2011 and emphasised that this certificate in the last few lines clearly confirms that amount of Rs. 3,68,500 and Rs. 1,94,144 have been paid and accounted for by the appellant in the books of accounts as deposits and receivable for the financial year in question. It was the case of the learned Advocate that once the duty has been paid under protest and the same is shown as receivable then unjust-enrichment is not attracted. It was also argued that price of their end product HDPE Sacks was not enhanced by the appellant as a result of duty paid by the appellant. He relied upon the judgment of Hon'ble Supreme Court in the case of CCE, New Delhi vs. Organan (India) Limited  [2008 (231) ELT 201 (SC)]. He also relies upon the case law of VXL Instruments Limited vs. Commissioner of Customs, Bangalore  [2012-TIOL-389-CESTAT-BANG], wherein also a view was taken that unjust-enrichment is not applicable based on order passed by Apex Court in the case of CCE, New Delhi vs. Organan (India) Limited (supra).

3. Shri G.P. Thomas (AR) appearing on behalf of the Revenue argued that unjust-enrichment is involved in the present proceedings as held by the first appellate authority in Para 11 of OIA dated 29.11.2012. Learned AR strongly defended the orders passed by the lower authorities.

4. Heard both sides and perused the case records. In the present appeal, the appellant paid certain dues under protest and reflected the same in the books of accounts as receivable. Chartered Accountant certificate produced by the appellant confirms that the amount paid by the appellant was accounted for in the books of accounts as deposits and receivable. The sale price of the finished goods had shown no variation before the period of refund and after the period of refund. In view of the evidences produced by the appellant, the initial burden, that the amount claimed as refund has not been recovered from the consumers, has been discharged by the appellant. In similar facts, the Hon'ble Apex Court in the case of CCE, New Delhi vs. Organan (India) Limited (supra) has held as follows:-

3.? Assessee thereafter filed an application claiming refund of the customs duty paid by it. The authority-in-original rejected the claim on the ground that the assessee had passed on the burden of the customs duty to its customers and refund of the customs duty would amount to unjust enrichment as provided under Sections 27, 28(C) and (D) of the Act. Assessee challenged the order-in-original before the Commissioner of Customs (Appeals). Commissioner of Customs (Appeals) upheld the order-in-original. Assessee thereafter filed appeal before the Tribunal. Initially, there was a difference of opinion between the Member (Technical) and Member (Judicial) regarding the refund of the customs duty. It was held by the Member (Technical) that the incident of duty has not been passed on to the customers and therefore the assessee is eligible to claim the refund of custom duty whereas Member (Judicial) held it otherwise. The matter was referred to a third Member who agreed with the Member (Technical) holding that the incident of duty had not been passed on to the customers and therefore the assessee is eligible to refund of the customs duty. It is an admitted position that the burden to prove that the customs duty was not passed on to the customers is on the assessee. The Member (Technical) and the third Member on the basis of the following facts :

(i) in the invoices, it was clearly mentioned that the sale price did not include the customs duty.

(ii) that there was no change in price post-levying of the duty. Assessee had filed its price list and the customs duty was imposed thereafter. The goods were sold to the customers at the same price which was stated in the price list.

(iii) That there was an auditors certificate certifying that assessee had not passed on the customs duty to the customers.

came to the conclusion that the assessee had not passed on the burden of the customs duty to its customers. This finding is a finding of fact based on evidence which does not call for any interference.

Accordingly, this appeal is dismissed. No costs.

5. In view of the above observations and settled position of law, the duty paid under protest and shown as amount receivable in the books of accounts; when the sale price of the finished goods as claimed has not shown any change; it has to be held that doctrine of unjust-enrichment is not applicable in the present case. Accordingly, the appeal filed by the appellant is allowed with consequential relief, if any.

(Order dictated and pronounced in the Court)

(H.K. Thakur) Member (Technical) .KL

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