2017 (3) TMI 465

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....6.09.2012 by which the Tribunal has dismissed the appeal filed by the assessee and confirmed the rejection of claim of refund made by the assessee before the lower authorities. The questions of law sought to be answered are hereunder:- "(i) Whether upon the facts and circumstances of the case, the Tribunal was justified in holding that irrespective of the purpose for which the duty has been granted under notification no.132/82-CE dated 21.04.1982 in respect of the excess production of sugar during the lean period from May 1982 to September 1982, refund on account of the exemption of notification would be subject to the principle of unjust enrichment ? (ii) Whether upon the facts and circumstances of the case, the Tribunal ....

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.... aforesaid Notification. However, instead of giving effect to the exemption notification, the assessee charged and also paid into the government account excise duty on sales of sugar manufactured during the period in question. Subsequently, the assessee raised a claim for refund of the said amount. According to the assessee it was entitled to the said refund as the Notification dated 21st April, 1982 granted benefit in the shape of concession to the assessee. The Tribunal has rejected the claim of the assessee by applying the principle of unjust enrichment by reasoning that the assessee having charged and having thus, passed on the liability of excise duty on the purchaser, it was not entitled to claim refund of such amounts. Amongst ....

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....dispute to the fact that the assessee appellant has passed on the liability of central excise duty to the purchasers. In view of the admitted position of fact and the clear position in law that the manufacturer cannot be entitled to claim refund of duty that has not been borne by him or has been passed on to the purchaser, we do not find any error in the findings recorded by the Tribunal. In a similar controversy in the case of Sahakari Khand Udyog Mandal Ltd. v. Commissioner of C. EX. & CUS. reported in 2005 (181) E.L.T. 328 (S.C.) the Hon'ble Apex Court has held as under:- "The doctrine of `unjust enrichment', therefore, is that no person can be allowed to enrich inequitably at the expense of another. A right of rec....

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....orders restitution if the justice of the case so requires." The above principle has been accepted in India. This Court in several cases has applied the doctrine of unjust enrichment. In Orient Paper Mills Ltd. v. State of Orissa, [1962] 1 SCR 549, this Court did not grant refund to a dealer since he had already passed on the burden to the purchaser. It was observed that it was open to the Legislature to make a provision that an amount of illegal tax paid by the persons could be claimed only by them and not by the dealer and such restriction on the right of the dealer to obtain refund could lawfully be imposed in the interests of general public." In the case of Commissioner of Central Excise, Lucknow v. Kesar Enterprises....