2018 (3) TMI 627

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....inst the order dated 11.09.2013 passed by the CESTAT, Principal Bench, New Delhi. The questions of law sought to be answered are as hereunder: "(1) Whether the doctrine of unjust enrichment in Section 11B of the Act is applicable to the facts of the case, having regard to the fact that the amount in dispute charged as excise duty in the debit side of profit and loss account constituted cost of manufacture and absorbed by sale vale depicted in credit side of that account? (II) Any other point Hon'ble Court may deem fit and proper in relation to issue under consideration?" The present appeal is with regard to the question as to whether the assessee had indulged in unjust enrichment or not? The assessee is engaged i....

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....inst the party, and the matter was referred to the Settlement Commission, New Delhi. The Settlement Commission settled the aforesaid demand for an additional duty liability of Rs. 5,55,731/-, which was also appropriated from the amount which was deposited by the assessee under protest. Immunity from the payment of penalty and interest was also granted vide Settlement Commission's order dated 11.06.2004. Thus, on facts the admitted position is that the matter relating to discrepancies of the party were settled by the Settlement Commission for a total sum of Rs. 8,40,150/-. The assessee therefore, made a refund claim for a sum of Rs. 10,34,000/-. The refund claim was rejected by the Adjudicating Officer by way of an order dated 06.0....

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....y that the buyer has borne the burden of the excise duty. However, the second Member held that the facts in this case are quite different and the bar of unjust enrichment did not apply because the amount of Rs. 18.75 lacs had been paid by the assessee under protest during investigation proceedings and even before the issuance of a show-cause notice. The matter was, therefore, referred to the third Member. The third Member was of the categorical view that this was not the case of the unjust enrichment because the duty involved in refund was not paid at the time of clearance of goods but subsequently during the course of investigation for the past period. The goods had already been cleared earlier. The third Member also emphasized that the....

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.... insofar as the provision of Section 12A of the Act is concerned, every manufacturer clearing the goods on payment of duty has to indicate on documents of assessment, sale invoices and other like documents the amount of excise duty which will form party of the price at which such goods are sold. It is his contention that the provision will not be attracted in the present case as the goods have already been cleared and the duty had been paid subsequently. He also argued that under Section 12B of the Act any person who paid the duty on goods shall be deemed to have passed on the incidence of duty unless contrary is proved by that person. In this case duty involved in refund was not paid at the time of clearance of goods, but subsequently duri....