TaxTMI 
TaxTMI 
2023 (4) TMI 870
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....IA 230- 231/MA/GGN/2009 230- 231/MA/GGN/2009 230-231/MA/GGN/2009 dated 31.08.2009 2. Briefly stated the facts of the present case are that the appellant are engaged in the manufacture of excisable goods i.e. Air Conditioners, Chillers and parts thereof. They were paying central excise duty on their products, cleared to their depots on stock transfer basis under Section 4 of the Central Excise Act, 1944. They filed refund claim for Rs. 7,01,241/- and 6,11,387/- vide application dated 09.02.2017 and 10.09.2007. (i) After following due process, the Assistant Commissioner sanctioned both the refunds in favour of the appellant vide order-in-original dated 18.12.2007 and 14.01.2008 respectively and allowed re-credit of these amounts in the cenvat credit account of the appellant. (ii) Aggrieved by the said order, the department filed appeals against the order of the adjudicating authority before the Ld. Commissioner (Appeals) and the same were allowed by the Ld. Commissioner (Appeals) vide order-in-appeal dated 26.08.2008. (iii) Thereafter, the appellant filed appeals before this Tribunal against the order of the Ld. Commissioner (Appeals) and this Trib....
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..... Commissioner (Appeals) is contrary to the judgement of the Tribunal in the case of Nahar Spg. & Wvg. Mills Ltd. vs. Commissioner of C.Ex., Bhopal 2009 (247) ELT 708 (Tri.-Del.) wherein after considering the submissions of the department that the appellants failed to co-relate the goods cleared from the factory and removal from the depot and therefore, have failed to establish that the incidence of duty has not been passed to any further person. Further, she also relied upon the following judgements:- • WEP Peripherals Ltd. v. CCE 2007 (213) ELT 18 (Tri.- Bang.) • CCE, Chennai v. Carborandum Universal Ltd. 2008 (224) ELT 290 (Tri.-Bang.) • CCE v. GIS Cotton Mill Ltd. 2006 (197) ELT 370 (Tri.- Kolkata) • SD Fine Chem Ltd. v. CCE 2015 (324) ELT 181 (Tri.- Ahmd.) She further argued that the department has not produced any contrary evidence to upset the conclusion in the Chartered Accountant certificates which is produced on record as well as the verification report (referred to in the Original Order granting the refund). Hence, it was not open to the department to question the issue of unjust enrichment in the absence of any cont....
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....T 813 (SC) • Commissioner of Customs (Import) v. Kodak India Ltd. 2015 (320) ELT 779 (Bom.) 5. On the other hand, the Ld. DR reiterated the findings in the impugned order and submitted that the appellant has only been able to prove that they have paid more duty then the duty they ought to have paid in terms of Rule 7 of Central Excise Valuation Rules, 2000 but they have not been able to establish that the higher duty paid by them for which refund has been sought, has not been recovered from their buyers. She further submitted that the chartered accountant certificates produced by the appellant do not support the case of the appellant because the doctrine of unjust enrichment requires that the person who applies for refund has to prove beyond doubt that the duty paid/borne by him has not been passed on to the ultimate buyer. She also submitted that in the remand order, the Hon'ble High Court has not directed the Tribunal to decide the case on merit. She relied upon the following judgements as cited in support of his submission:- • Hindustan Petroleum Corpn. Ltd. vs. Commr. of Customs (Imports), Mumbai 2015 (328) ELT 490 (Tri.- Mumbai) • Comm....
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....Kodak India ltd. 2015 (320) ELT 779 (Bom.) wherein the Hon'ble Bombay High Court held that as the issue was restricted to the aspect of unjust enrichment by way of the remand order, the question of maintainability of refund claim cannot be looked into. Regarding the issue of no estoppel in tax matters, the department has submitted that the facts that the refunds of previous period have already been granted to the appellant does not mean that the department cannot take contrary stand in the present case. The ld. Counsel distinguished the authorities relied upon by the department on this issue by submitting that the facts in those cases were different from the facts involved in the present appeals. 7. We have considered the rival submissions made by both the parties and we have also considered the various decisions relied upon by both the parties in support of their submissions. We find that admittedly the appellant has paid duty at a higher value while clearing the goods from the factory to the depots and the said goods were sold to the customers at a lower price and the original authorities after verification of all the documents have found that the appellant entitled to refund ....
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....y." The Commissioner (Appeals) set aside the adjudication order, holding that the appellants failed to prove that the duty burden has not been passed on to other persons. It has been observed that the goods cleared from the factory and the goods sold from depot on a particular day are different. We are unable to accept the finding of the Commissioner (Appeals). We agree with the finding of original authority. 6. The original authority rightly held that depot price is relevant for the purpose of assessment. It is proved that the price at depot was lower than the factory gate price. So, there is no reason to look into as to what price goods were sold subsequently. In this connection we reproduce the relevant portion of the decision of the Tribunal in the case of Carborandum Universal Ltd. (supra) :- "5. On a very careful consideration of the issue, we find that when the goods are stock transferred from the factory, to the depot, duty is to be paid in terms of Section 4(b) read with Valuation Rules. The time of removal in respect of goods removed from the place of removal shall be deemed to be the time at which such goods are cleared from the factory. When the coated....
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....nting refund and before the Hon'ble High Court also, the counsel appearing for the revenue has admitted that the Tribunal in their decision dated 02.08.2017 has wrongly recorded that there was no verification report examining the issue of unjust enrichment. The original authority while granting the refund has verified all the documents as recorded by them in the order-in-original granting the refund and in the absence of any contrary evidence, the department cannot possibly say that the bar of unjust enrichment has not been passed by the appellant. The decisions relied upon by the appellant in the case of Ispat Industries Ltd. (supra) clearly holding that once there is a sufficient evidence to prove that the excess duty paid by the assessee has not been passed on to the ultimate buyer, the doctrine of bar of unjust enrichment will not be applicable. 11. Further, we find that the Ld. Commissioner (Appeals) has travelled beyond the remand order passed by the Tribunal. In remand order, the Ld. Commissioner was only to consider the issue of unjust enrichment whereas the Ld. Commissioner has gone beyond the remand order to hold that Rule 7 of the Central Excise Valuation Rules, 2000 ....