2014 (12) TMI 1177

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....ssioner of Central Excise (Appeals), Lucknow. In the impugned order, it has been held that refund claim is not admissible to the appellant, as it is hit by the bar of unjust enrichment. 2. The brief facts of the case, leading to this appeal, are as follows :- The appellant is a manufacturer of flash lights (torches). Each individual torch is packed in polythene covers and thereafter are packed in printed cartons (primary packing). 25 to 50 nos. of such individual cartons are then packed in bigger cartons (secondary packing) and are cleared to the depots, from where the torches are sold to the customers. During the disputed period, the appellant did not include the cost of secondary packing in the value of torches for the purpose ....

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.... from the Department under the accounting head "loans & Advances". According to the ld. Advocate, since the balance sheet reflects the amount of refund as recoverable from the department, the duty burden in such case cannot be held to be passed on to the customers, and thus, the refund amount cannot be transferred to the consumer welfare fund. To substantiate his above stand, the ld. Advocate for the appellant has cited the following decisions of the Tribunal : (i)      Dabur India Ltd. v. CCE, Ghaziabad [2008 (228) E.L.T. 131 (Tri.-Del.)] (ii)    Madura Coats Pvt. Ltd. v. CCE, Kolkata-IV [2007 (219) E.L.T. 545 (Tri. Kolkata)] (iii)   MRF Ltd. v. C.C. (Port), Kolka....

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....he said section provides that on receipt of the refund application, if the said statutory authority is satisfied that the duty paid by the applicant is refundable, then he has to pass an order accordingly and the amount of refund shall be credited to the Consumer Welfare Fund. As per the first proviso to sub-section (2) of the said section, the amount of duty as determined by the statutory authority shall, instead of being credited to the said Fund, be paid to the applicant, if such amount is relatable to the duty paid by the manufacturer, if he had not passed on the incidence of such duty to any other person. Section 12B of the Act contains fiction to the effect that every person who has paid the duty of excise on any goods under the Act s....

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....mle Dhandhania & Co., Chartered Accountants, upon verification of the Books of Accounts maintained by the appellant, in their certificate dated 14-8-2009 has also endorsed the said fact. It is evident from the Balance Sheet and the certificate issued by the Chartered Accountant firm that the incidence of Central Excise duty has not been passed on by the appellant to its customers or any other person and the same has been borne by itself. As held by Hon'ble Rajasthan High Court in the case of UOI v. A.K. Spintex reported in 2009 (234) E.L.T. 41 (Raj.) the presumption under Section 12B is a rebuttable presumption and once the assessee produces evidence in support of his claim of having not passed on the incidence of duty whose refund is claim....