2014 (12) TMI 1177

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....now. 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 of payment of Central Excise duty, which was ....

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...."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), Kolkata [2008 (225) E.L.T. 246 (Tri.-Kolkata)] (iv)   Amarnat....

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....atisfied 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 shall be deemed to have passed on the full incidence of the duty to the buyer of the goods. This presumpt....