COMMISSIONER OF C. EX., BANGALORE Vs. MINERVA MILLS

JUDGEMENT

(1.) THIS is an appeal filed by the Revenue.

(2.) THE issue relates to Unjust Enrichment. The Department has come in appeal on the ground that Purchase Order was inclusive of excise duty and hence it could not be treated as not collected from the customer and if the refund is sanctioned it would lead to Unjust Enrichment of refund sanctioned in as much as the duty incidence has not been borne by the manufacturer. The Commissioner (Appeals) has given a categorical finding that incidence of duty has not been passed on to the customers. On the other hand he observed that burden of duty has been borne by the manufacturer himself in the relevant finding portion at para 7 of the impugned order which is as under : - Para 7 - It is observed that the appellants have cleared their goods against the purchase order inclusive of excise duty. Thus from the price given in the purchase order only excise duty which would be payable has to be deducted to reach at the proper assessable value. Since the Appellants have paid Excise duty more than what was due it is but natural that, that Excise duty paid by them by mistake has been borne by them. A perusal of the invoice submitted by the appellant at the time of hearing also reveals the fact that the price was only Rs. 15,635/ - and therefore, they had to pay a duty of Rs. 327/ - whereas they have paid an amount in excess by 3,164/ -, thus totaling Rs. 3,491/ -. This excess amount of Rs. 3,164/ - has in fact been borne by the manufacturers themselves. The appellants are therefore due to get refund. The Assistant Commissioner has not doubt sanctioned refund, but after sanctioning the same has credited the same to the consumer welfare fund by reaching at the conclusion that the duty burden by the manufacturers has been passed on to the buyers. But this burden in fact has been borne by the manufacturers themselves.

(3.) ON going through the facts and circumstances of the case and taking into consideration of the submissions made by both sides, I do not find any infirmity in the impugned order passed by the Commissioner (Appeals). In the result, the appeal filed by the Revenue is hereby dismissed.