HINDUSTAN LEVER LTD. Vs. COMMR. OF C. EX.

JUDGEMENT

(1.) THE issue involved in this appeal filed by M/s. Hindustan Lever Ltd., is whether the refund of Central Excise duty claimed by them is hit by the principle of unjust enrichment.

(2.) SHRI C.S. Lodha, learned Advocate, submitted that the Appellants had been claiming the deductions of expenses from the assessable value under Section 4 of the Central Excise Act; that the clearances of excisable goods were allowed on the basis of provisional assessment under Rule 9B of the Central Excise Rules, 1944; that after the judgment of the Supreme Court in Government of India v. M.R.F., 1995 (77) E.L.T. 433, the Assistant Commissioner under Order dated 31 -3 -1997 disallowed certain expenses; that thereafter the Appellants submitted papers, documents and evidence to the Range officer and on the basis of these evidences submitted by them, the Assistant Commissioner passed the Order dated 5 -5 -1997 finalising the provisional assessment for 17 years [1974 -75 to 1987 -88 and 1991 -92 to 1993 -94]; that the Assistant Commissioner after referring to monthly despatches, monthly duty paid in respect of each brand of goods, brandwise calculation of assessable value and duty paid and revised calculation of assessable value and duty payable based on the deductions allowed vide Memorandum dated 31 -3 -97, arrived at the duty payable and passed Order for each year as under :

(3.) THE learned Advocate, further, submitted that consequent to finalisation of assessment, refund of Excise duty became payable to the Appellants; that they filed seventeen refund claims on 10 -7 -1997 for the excess duty paid for each of the financial year by way of abundant caution, as legally speaking, they were not required to file refund application and it was the duty of the Department to have refunded the duty suo motu, that show cause notice dated 30 -3 -2000 was issued to them for rejecting the refund claims on the ground that the refund claims were incomplete as they had not furnished copies of PLA, RG23A Part II, RT 12 Returns, relevant duty paying documents and invoices and that they had not furnished any evidence showing that the differential duty had been borne by themselves and had not been passed on to their customers; that the Assistant Commissioner, under Memorandum dated 18 -12 -2000, rejected the refund claims; that the Commissioner (Appeals) also under the impugned order, had rejected their appeal holding that for want of required documents evidencing payment of duty of excise, the adjustment of duty on finalisation of provisional assessment remained pending till 18 -12 -2000 and "when the Assistant Commissioner had decided their all seventeen refund claims on 18 -12 -2000, Rule 9B of Central Excise Rules, 1944 was in effect in amended form as amended vide Notification No. 45/99 -CE. (N.T.), dated 25 -6 -99 and according to such amendment it was mandatory on the part of the appellants to produce evidence showing that burden of incidence of duty had not been passed on to the customers. In addition to above the Assistant Commissioner rejected all the refund claims on account of non -submission of documents along with refund claim as required under Section 11B(1) of the Central Excise Act, 1944."