2014 (2) TMI 824 - AT - Central Excise

Tribunal dismisses appeal for lack of evidence supporting duty non-passing claim.

KIRLOSKAR OIL ENGINES LTD Versus CCE

KIRLOSKAR OIL ENGINES LTD Versus CCE - TMI Issues:1. Refund claim rejection based on unjust enrichment.2. Marketability of intermediate product.3. Passing the bar of unjust enrichment.Analysis:The appeal in this case revolves around the rejection of the refund claim by the appellants due to the failure to establish the bar of unjust enrichment. The appellants, engaged in manufacturing Aluminium Alloy Strips, an intermediate product for 'Bimetal Bearings,' paid duty under protest during a period when the strips were not marketable. A Writ petition in the Hon'ble High Court of Bombay ruled in favor of the appellants, stating that as the strips were not marketable, a refund claim for duty was valid. However, the Hon'ble Apex Court overturned this decision and remanded the matter to the Commissioner (Appeals) to determine the marketability of the intermediate product and whether the appellant passed the bar of unjust enrichment.The Commissioner (Appeals) subsequently held that the intermediate product was not marketable, but the appellant had passed the bar of unjust enrichment. The Revenue challenged this decision before the Tribunal, leading to a remand to reexamine the issue of unjust enrichment. In the subsequent proceedings, the Commissioner (Appeals) found that the appellant failed to provide sufficient evidence to support their claim of not passing on the duty to buyers, prompting the current appeal.The appellant argued that the bar of unjust enrichment should not apply as their intermediate product was not marketable, and they paid duty under departmental persuasion without reflecting it as receivable in their accounts. They contended that any price fluctuations in the final product did not affect the duty paid on the intermediate product, thus passing the bar of unjust enrichment. Additionally, they proposed to produce a C.A. certificate if the matter was remanded, citing a previous tribunal ruling in support of their position.Conversely, the Revenue contended that the appellant failed to demonstrate that the duty on the intermediate product was not passed on to buyers, emphasizing the lack of cogent evidence to support the claim. They argued that the duty paid on the intermediate product was part of the finished goods' cost structure, necessitating proof of non-passing to buyers, which the appellant failed to provide.Ultimately, the Tribunal upheld the impugned order, dismissing the appeal. The Tribunal noted that the duty was paid under protest without being accounted for as receivable, and the appellant failed to present convincing evidence to establish non-passing of duty to buyers. The Tribunal rejected the applicability of a previous case law cited by the appellant, emphasizing the lack of evidence presented and concluding that a remand was unnecessary due to insufficient proof supporting the claim.In conclusion, the Tribunal upheld the decision, emphasizing the appellant's failure to provide substantial evidence to support their claim of not passing on the duty to buyers, thereby dismissing the appeal based on the lack of cogent evidence and the failure to establish the bar of unjust enrichment.