2014 (12) TMI 448 - AT - Central Excise

Revenue's Appeal Granted, Refund Claim Rejected Due to Unjust Enrichment.

COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX CALICUT Versus CYBELE HERBAL LABORATORIES LTD

The Appellate Tribunal CESTAT Bangalore allowed the Revenue's appeal, overturning the decision of the Commissioner and Commissioner (Appeals) to grant a ... Denial of refund claim - SSI Exemption - Unjust enrichment - Held that:- Verification of the invoices issued by the appellants will show that they were collecting excise duty separately in the invoices during the period for which refund has been sanctioned. He also relies upon the decision of this Tribunal in the case of Philips Electronics India Ltd Vs Commissioner of Central Excise Pune [2010 (4) TMI 449 - CESTAT, MUMBAI] to submit that just because the list price remains the same, it cannot be said that incidence of duty has not been passed on. It was held that bar of unjust enrichment cannot be got over on the sole ground of uniformity of price and it has to be inferred that assessee was only altering their profit margin. We find this decision to be applicable to the facts of this case. Even where the invoices did not show service tax separately in the case of Multi Mantech International Pvt. Ltd. Vs CST Ahmedabad [2008 (7) TMI 103 - CESTAT AHMEDABAD], this Tribunal taken a view that even where the assessee did not show service tax separately in the invoices, it does not mean that tax was not collected from the buyers. In this case also, other than C.A’s certificate, there is no other evidence forthcoming to show that there was no unjust enrichment - Decided in favour of Revenue. Issues:- Appeal against Commissioner's decision allowing refund to the appellants.- Eligibility for availing SSI exemption.- Refund claim rejection by Assistant Commissioner.- Tribunal remanding the matter back to Commissioner for examining unjust enrichment aspect.- Applicability of Notification No. 9/2001 for concessional rate of duty.Analysis:The appeal before the Appellate Tribunal CESTAT Bangalore was against the decision of the Commissioner allowing the refund to the appellants. The appellants had availed the Small Scale Industries (SSI) exemption for the year 1999-2000 but became ineligible for the exemption in the subsequent year 2000-2001 due to crossing the turnover limit. In 2000-2001, they paid duty at the normal rate due to a misconception. The refund claim of Rs. 15,99,196/- for the duty paid in 2001-2002 was rejected by the Assistant Commissioner citing non-compliance with Notification No. 08/2001. The Commissioner (Appeals) upheld the rejection. The Tribunal remanded the matter back to the Commissioner to examine the unjust enrichment aspect.The Appellate Tribunal noted that the respondents were absent on multiple scheduled dates. The learned A.R. for the appellants argued that the refund was allowed by the Commissioner (Appeals) based on the absence of price change in the products sold and a certificate confirming that the appellants bore the liability. The A.R. pointed out that the appellants were collecting excise duty separately in their invoices during the refund period. Referring to a previous case involving Philips Electronics India Ltd, the A.R. argued that uniformity in price does not negate the passing on of duty incidence, indicating a potential alteration in profit margin.The Tribunal further discussed a case involving Multi Mantech International Pvt. Ltd., where the absence of service tax in invoices did not imply that tax was not collected. In the absence of additional evidence besides the certificate, the Tribunal concluded that there was no proof of unjust enrichment. Citing precedents, the Tribunal held that the appeal filed by the Revenue challenging the decision to allow the refund must be upheld. Consequently, the Revenue's appeal was allowed by the Tribunal.