ORIENT VISION LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) DURING the material period, the appellants were engaged in the manufacture of "Colour Television sets", which were assessed to duty of excise on MRP basis in terms of Section 4A of the Central Excise Act. In respect of two consignments of CTV sets removed from their factory, they mistakenly determined the assessable value by adopting 100% of MRP and paid duty accordingly. Later on, they realized that they were entitled to abatement to the extent of 30% under Section 4A of the Act and, therefore, their payments of duty were on higher assessable values. In other words, they ought to have paid duty on an assessable value based on only 70% of MRP. Therefore, the assessee filed two refund claims, which were sanctioned by the original authority, but the amounts were credited to the Consumer Welfare Fund in terms of Section 11B(2) of the Central Excise Act. An appeal was preferred to the Commissioner (Appeals), before whom the party contended that the bar of unjust enrichment was not applicable to a claim for refund of duty paid on MRP basis. This plea was rejected by learned Commissioner (Appeals), who, having found, on record, no evidence of the incidence of (sic) duty not having been passed on to the buyer, rejected the claim for cash refund of duty on the ground of unjust enrichment. Hence these appeals.

(2.) THERE is nobody to represent the appellants today despite notice, nor is there any request of theirs for adjournment. In the circumstances, we take up this old appeal for final disposal.

(3.) WE have examined the records and heard learned SDR, who has reiterated the reasoning of the original and first appellate authorities. Copies of the relevant invoices are seen on record and the same indicate that the assessable value (determined at 100% of MRP) and the duty paid on the goods were separately shown in the invoices. These documents are conclusive evidence of the duty burden having passed on to the buyers. There is no contra evidence available on record. Where refund of duty of excise paid by an assessee is claimed under Section 11B, it is incumbent on him to rebut the statutory presumption that the incidence of duty had passed on to the buyer of the goods at the time of its removal. As rightly observed by learned Commissioner (Appeals), there is no evidence to rebut this presumption. In the circumstances, we have got to sustain the impugned order.