BEACON WEIR LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) In both these appeals common issue arises for consideration. The appeals arise from common order passed by the Commissioner (Appeals) by order -in -appeal No. 7 and 8/2001 (M -II), dt. 16 -4 -2001. The Commissioner (Appeals) has confirmed the rejection of refund claim on the ground of unjust enrichment and to credit the amounts to the consumer welfare fund. The authority has held that refund amount of Rs. 99,994/ - and Rs. 5,68,751/ - is held to be available but is hit by unjust enrichment. The appellants case is that duty paid has not been passed on to the consumer and they are entitled to receive the same from the hands of the Revenue and that it should not be credited to the consumer welfare fund. It is their contention that the price during the period was constant and that the duty which was paid on the intermediate product was not passed on to the consumer nor it was recovered from the manufacturing cost That the cost was not arrived at before the payment of duty or added on the intermediate product. They state that the duty had been borne by the appellants. In this regard, they have filed sufficient document which according to the appellants have not been looked into. Ld. Counsel filed a set of documents supported by the Certificate issued by their Cost Accountants dt. 22 -4 -2003 wherein the Cost Accountant has certified that he has gone through the available records and documents pertaining to the year 1986 -87 in general and in particular, the invoices raised during the currency of the impugned period of two months before the impugned period and also two months after the impugned period and found that the Pumps which are of similar nature in terms of its material construction and specification were sold at the same price irrespective of the fact that the cost of the captively consumed parts have suffered Excise duty to various types of Customers who were unrelated to the company. He has further certified that he is convinced that the company had not raised any debit memos on the Customs for the increase in price consequent to the imposition of Excise on the captively consumed parts. He has noted that he found that the sales rebate like dealer discount had not been reduced to offset the increase in cost of pumps. Ld. Counsel on the basis of these documents submits that the refund was not hit by unjust enrichment. He also relied on the rulings rendered by the Delhi Bench in the case of Tecil Chemicals and Hydro Power Ltd. v. CCE, Cochin reported in 2003 (151) E.L.T 136 (Tribunal) = 2003 (55) RLT 643 wherein it has been held that doctrine of unjust enrichment is not applicable to refund arising out of finalisation of provisional assessments. It has also been held that the refund of duty paid on inputs is claimed price of final product has remained same or reduced after appellants started paying duty on inputs in view of the Chartered Accountant Certified that duty incidence was not passed on. In these facts and circumstances refund is admissible, as the incidence of duty is not passed on to the consumer. He also relied on the judgment rendered in the case of CCE reported in 2000 (39) RLT 594 wherein it has been held that where the incidence of duty is not passed on to the consumer as invoice was shown that the same price during the period in question can be appropriated to them and in such circumstances refund to the assessee was eligible. Ld. DR distinguishes the judgments and submits that both the authorities have rightly examined the issue and have held that the refund is hit by unjust enrichment. She relies on the following judgments:

(2.) On a careful consideration I notice that the appellants have now produced Cost Accountant certificate, which clearly certifies that the incidence of duty has not been passed on to the consumer on raising a debit note. The tribunal in the case of TICL v. CCE held in similar facts that in the light of the C.A's Certificate the incidence of duty has not been passed on to the consumer and the refund is admissible. A similar view was expressed in the case of CCE v. Carona Costmetics and Chemicals Ltd. reported in 2002 (146) E.L.T. 396 (sic). In the case law referred to by the ld. SDR I notice that in the case of SRF Ltd. the claim of refund pertained to the capital goods and it was held that amortization had been done which disentitled the claim. The matter had been remanded for de novo consideration. In the case of CCE v. Elgi Equipments the Tribunal noticed that the burden of proof of unjust enrichment had not been discharged by the assessee. Both the Apex Court judgments are distinguishable in the light of the other two judgments referred by Ld. Counsel in which the certificate of C.A. has been discussed. I am of the considered opinion that the matter has to go back to the original authorities for reconsideration of the points urged in the light of the Cost Accountant certificate. If on the facts discussed in the Cost Accountant Certificate it ultimately prevailing and it is shown that the incidence of duty has not been passed on to the consumer then the claim of the appellants is required to be accepted in the light of judgments referred to by them. Therefore the impugned order is set aside and the matter is remanded for de novo consideration to the lower authority who shall hear the appellants and pass a speaking order in the matter.